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OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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CASES  ON  THE  LAW 

OF 

PERSONAL  PROPERTY 


BY 

JOHN  V.  BRENNAN,  A.  B.,  LL.  B. 

OF  THE  DETROIT  BAR 

Professor  of  the  Law  of  Property  in  the  Detroit  College  of  Law 


CHICAGO 

CALLAGHAN  &  COMPANY 
1918 


Copyright   191 8 

BY 

CALLAGHAN  &  COMPANY 


PREFACE 


The  author  has  long  been  of  the  opinion  that  the  subject  of  Per- 
sonal Property  was  deserving  of  more  attention  than  is  often  times 
given  to  it  in  the  law  schools  of  this  country.  This  seems  partic- 
ularly so  because  of  the  constantly  increasing  volume  of  this  type 
of  property,  and  the  multiplicity  of  legal  relations  arising  there- 
from ;  and  while  many  phases  of  the  subject  naturally  lend  them- 
selves to  separate  treatment,  yet  there  is  a  certain  body  of  legal 
principles  which  underlie  and  run  throughout  the  subject  of  Per- 
sonal Property,  a  knowledge  of  which  is  highly  desirable,  if  not  ab- 
solutely necessary  to  a  reasonable  understanding  of  the  law. 

The  purpose  of  this  book  is  to  set  out  and  illustrate  by  concrete 
cases  these  fundamental  principles. 

In  selecting  these  eases,  the  author  has  kept  in  mind  two  things ; 
viz.,  first,  to  include  no  ease  based  on  obsolete  law ;  second,  to  include 
only  so  much  of  the  case  as  is  in  point. 

The  cases  have  also  been  arranged  in  such  a  way  as  to  develop,  in 
a  logical  order,  the  legal  principles  under  discussion.  As  a  further 
help  to  the  student,  a  topical  heading  has  been  used  for  each  case 
or  group  of  cases,  the  purpose  being  to  give  the  student  something 
definite  to  look  for.  The  heading,  however,  in  no  instance,  reveals 
the  holding  of  the  case,  for  the  author  has  been  as  careful  to  pre- 
vent legal  conclusions  being  drawn  from  the  headings  as  he  has  been 
particular  in  selecting  suitable  headings.  The  cases  selected  are  of 
such  a  type  and  variety  as  to  illustrate,  in  a  comprehensive  manner, 
the  underlying  principles  of  the  law  of  Personal  Property. 

^       .     ,,.  ,  .  The  Author. 

Detroit,  Michigan. 

February,  1918. 


723853 


TABLE  OF  CONTENTS 


CHAPTER  I 

PROPERTY  DEFINED  AND  CLASSIFIED 

PAGE 

1.  Property  defined  and  classined 1 

2.  Personal  property  defined 12 

3.  Distinction  between  real  and  personal  property 16 

CHAPTER  II 

CHATTELS  REAL 

1.  Leaseholds 19 

2.  Fixtures 23 

a.  Nature  of 23 

b.  Intention 32 

e.  Agreement    34 

d.  Annexation 36 

e.  Adaptation 39 

f.  Landlord  and  tenant 43 

(1)  Right   of   tenant   to   remove   fixtures — Tenancy 

certain — Termination  by  act  of  tenant 43 

(2)  Tenancy  uncertain 47 

(3)  Renewal  of  lease — Right  of  tenant  to  remove  fix- 

tures    51 

g.  Vendor  and  vendee 60 

h.  Rights  of  third  parties 63 

,i.  Rolling  stock 68 

3.  Emblements :  Fructus  naturales 72,  78 

a.  Nature  of 72 

b.  Who  entitled  to  .emblements 79 

(1)  Grantor  and  grantee 79 

(2)  Debtor  and  creditor 83 

(3)  Landlord  and  tenant 86 

(A)  Tenancy  uncertain 86 

V 


vi  Table  of  Contents 

PAGE 

(B)  Tenancy  certain 88 

(C)  Rights  of  undertenants 90 

c.  Standing  timber 93 

d.  Fruits 97 

e.  Hops   101 

4.  Ice 105 

5.  Manure 113 

a.  Landlord  and  tenant. 113 

(1)  Usual  course  of  husbandry 113 

(2)  Not  in  usual  course  of  husbandry 117 

b.  Vendor  and  vendee 118 

CHAPTER  III 

CHOSES  IN   POSSESSION 

1.  Animals  125 

2.  Fish 131 

3.  Bees 132 

4.  Money 135 

a.  Tender 139 

(1)  Must  be  unconditional 139 

(2)  Proper  sum 141 

(3)  Check 143 

(4)  Mutilated  coin 145 

b.  Rights  in  stolen  money 149 

CHAPTER  IV 

CHOSES  IN  ACTION 

1.  Nature  of 152 

2.  Assignability  of  right  of  action  for  personal  injury .156 

CHAPTER  V 

PATENTS,  COPYRIGHT,  GOODWILL,  TRADEMARK,  AND  TRADENAME 

1.  Patents 163 

a.  Requisites 163 

(1)  Novelty 163 

(2)  Must  be  useful 167 

(3)  Physical  things  only 169 

b.  Abandonment 172 


Table  op  Contents  vii 

PAGE 

2.  Copyright 176 

a.  Definition — Kinds :    Common  law— Statutory 176,  181 

b.  Letters 187 

c.  Infringement  190 

d.  Motion  picture 192 

3.  GoodwiU 196 

4.  Trademark 199 

a.  Nature  of 199 

b.  Common  law 203 

(1)  Territorial  limits 203 

c.  Statutory 214 

(1)  Use  of  geographical  name 214 

5.  Tradename 221 

^        a.  Distinction  between  tradename  and  trademark 221 

CHAPTER  VI 

LIMITATIONS   ON    AND   INTERESTS  IN    PROPERTY 

1.  Ownership  230 

a.  Expert  witness 230 

2.  Potential  existence 233 

3.  Human  bodies 255 

4.  Wild  animals 260 

5.  Gas  and  oil 267 

6.  Tenancy  in  common 273 

7.  Joint  tenancy  •  .  275 

CHAPTER  yil 

HOW   PROPERTY   COMES  INTO   EXISTENCE 

1.  Severance 280 

2.  Accession  282 

$.  Occupancy 282 

CHAPTER  VIII 

TRANSFER  OF  PROPERTY  BY  ACT  OF  THE  PARTIES 

1.  Chattel  mortgage 287 

a.  Definition — Nature  of 287 

b.  Possession— Permitting  mortgagor  to  sell  in  usual  course 

of  trade 290 


viii  Table  op  Contents 

PAGE 

e.  Description 303 

d.  delivery .308 

e.  Filing 309 

f.  Refiling 317 

g.  Removal  of  chattel  to  another  state 321 

h.  Foreclosure 326 

2.  Liens 327 

a.  Classification 327 

(1)  Common-law  lien 331 

(2)  Statutory  lien .338 

b.  Right  of  priority  in  liens 343 

c.  Parting  with  possession 345 

d.  Mechanic 's  lien 346 

(1)  Definition— Nature  of 346 

(2)  Public  property 348 

(3)  Priority  of  claim  of  conditional  vendor 350 

(4)  Rule  of  construction 355 

3.  Gifts 359 

a.  -Definition — Classification 359 

b.  Inter  vivos 363 

e.  Causa  mortis 368 

d.  Delivery   372 

e.  Check .388 

f .  Revocation    395 

CHAPTER  IX 

TRANSFER  OF  PROPERTY  BY  OPERATION  OP  LAW 

1.  Accession 399 

a.  Definition— Nature  of 399 

b.  "Wilful  trespasser 402 

c.  Innocent  trespasser 411 

d.  Enhanced  value 414 

e.  Measure  of  damages 420 

f.  Purchaser  from  wilful  trespasser 425 

(1)  Measure  of  damages 425 

2.  Confusion 429 

a.  Definition — Nature  of 429 

b.  Indistinguishable  intermingling 431 

c.  Wilful  intermingling 433 

d.  Innocent  or  accidental  intermingling 437 


Table  of  Contents  ix 

CHAPTER  X 

HOW  PROPERTY  CEASES  TO  EXIST 

PAGE 

Police  power — Nature  of 444 

^.  Sleeping  car  berths 448 

•b.  Intoxicating  liquors  454 

c.  Regulation  of  hours  of  labor 460 

d.  Compulsory  vaccination 467 

e.  Speed  of  automobiles 472 

. .  f .  Licensing  of  barbers 474 

Lost  property 477 

a.  Nature  of 477 

'b.  Mislaid  property 484 

c.  •  Treasure  trove 489 

(d.  Property  hidden  in  the  earth 492 

e.  Abandoned  property 498 

f.  Return  of  lost  property 500 

g.  Estrays  502 

h.  Reward 504 

i.  Larceny  by  finding 510 


Cases  on  Personal  Property 

CHAPTER  I. 

PROPERTY  DEFINED  AND  CLASSIFIED. 

HARVEY  COAL  &  COKE  CO.  v.  DILLON.  * 

59  W.  Va.  605:  53  8.  E.  928;  6  L.  R.  A.  (N.  S.)  628.    1905. 

Bill  by  the  Harvey  Coal  &  Coke  Co.  against  C.  W.  Dillon,  tax 
commissioner  et  al.,  in  which  a  decree  was  entered  for  the  defend- 
ants and  the  plaintiff  appeals. 

The  facts  are  stated  in  the  opinion. 

Brannon,  p. — The  Harvey  Coal  &  Coke  Company,  a  corporation, 
presented  to  the  Honorable  "W.  R.  Bennett,  judge  of  the  circuit  court 
of  Fayette  county,  a  chancery  bill  setting  up  that  on  20th  of  May, 
1893,  it  made  a  contract  with  Morris  Harvey  and  others  for  the 
purchase  of  all  the  coal  in  the  Sewell  seam  in  certain  land,  together 
with  the  right  to  enter  upon  the  surface  and  use  so  much  of  the  sur- 
face as  might  be  required  in  mining,  for  which  the  company  was  to 
pay  Harvey  and  others  10  cents  per  ton  for  all  coal  mined ;  that  it 
had  actually  developed  the  coal  mine  and  was  engaged  in  mining 
coal  and  making  coke  on  the  land.  The  bill  complains  that  under 
certain  legislation  enacted  in  1905  for  the  taxation  of  personal  prop- 
erty C.  W.  Dillon,  state  tax  commissioner,  had  issued  such  instruc- 
tions to  B.  E.  Ware  and  S.  T.  Carter,  assessors  of  Fayette  county, 
as  would  require  them  to  assess  said  mining  property  under  the 
head  of  chattels  real,  and  that  the  assessors  would  assess  it,  and 
praying  that  said  commissioner  and  assessors  be  enjoined  from 
making  such  assessment,  on  the  theory  that  it  was  unwarranted  by 
law.  The  court  sustained  the  demurrer  to  the  bill  and  dismissed 
it,  and  the  plaintiff  appeals. 

1 

C.  P.  P.— 1 


2  Cases  on  Personal  Property 

The  deed  from  Harvey  and  others  to  the  plaintiff  contains  the 
following  language :  ' '  That  the  lessors  do  demise,  let  and  lease  for 
coal  mining  and  coke  manufacturing  purposes  for  a  period  of  thirty 
years  from  and  after  the  1st  day  of  January,  1893,  the  following 
tract  or  body  of  land  lying."  And  the  lessors  "do  also  grant  unto 
the  lessee  the  sole  and  exclusive  right  and  privilege  of  mining,  ship- 
ping and  selling  the  coal  from  the  above-leased  premises  from  the 
said  Sewell  seam,  and  the  right  to  erect  and  use  all  buildings  and 
structures  necessary  for  the  purposes  of  mining,  coking  and  ship- 
ping the  coal  and  coke  therefrom  and  for  all  other  purposes  con- 
nected with  or  necessary  for  the  free  exercise  and  enjoyment  of  the 
privileges  above  granted  or  demised."  "It  is  expressly  agreed 
between  the  respective  parties  to  this  lease  that  if,  at  the  expiration 
of  the  period  of  thirty  years,  all  of  the  available  merchantable  coal 
which  can  be  profitably  mined,  and  which  is  hereby  let  to  the  lessee 
for  that  purpose,  has  not  been  mined  and  removed,  then  the  lessee 
shall  have  the  privilege  of  an  extension  of  this  lease  upon  the  same 
terms  and  conditions  as  those  hereinbefore  set  forth,  for  a  reason- 
able addition  of  time  until  the  whole  of  said  coal  shall  be  so  mined 
and  removed.  And  it  is  further  mutually  agreed  and  understood 
that  an  abandonment  of  said  premises  by  said  lessee  for  a  period  of 
one  year  and  a  failure  to  pay  royalty  as  hereinbefore  provided  for 
that  period,  then  said  lessee  shall  forfeit  all  right  to  said  premises." 
The  question  of  equity  jurisdiction  was  waived,  and  is  not  con- 
sidered.    *     *     * 

The  Constitution  of  this  state  gives  the  Legislature  power, 
indeed,  a  mandate,  to  "tax  all  property,  real  and  personal."  There- 
fore, the  question  is  material :  Does  the  deed  in  this  case  vest  what 
is  in  law  property  in  the  Harvey  Coal  Company?  The  very  suit 
in  itself  is  a  concession  by  the  company  that  its  right  under  said 
deed  is  property,  because  that  suit  is  to  defend  that  property 
against  taxes.  But,  aside  from  such  concessions,  it  is  quite  plain 
that  the  company's  right  is  a  property  right.  Anything  capable 
of  beneficial  ownership  is  property — in  this  instance  a  valuable 
right  arising  by  contract,  a  right  to  take  coal  from  the  body  of 
land,  using  the  land  for  that  purpose,  and  convert  it  into  salable 
coal,  a  commodity  of  great  commercial  value.  "Man's  rights  in 
respect  to  things  constitutes  property."  2  Minor's  Institutes  1. 
The  company's  right  to  produce  commercial,  merchantable  coal  for 
market  and  manufacture  coke  is  a  right  in  respect  to  the  land, 
and  that  mere  right,  under  the  contract,  is  property.  The  sole 
and  despotic  dominion  which  one  man  claims  and  exercises  over 


Property  Defined  and  Classified  3 

external  things  of  the  world,  in  total  exclusion  of  the  rights  of 
any  other,  is  property.    2  Bl.  Com.  2.    The  right  to  possess,  use, 
enjoy,  and  dispose  of  a  thing  is  property  which  is  in  itself  valuable. 
Jones  V.  Yan^ault,  4  McLean  603,  Fed.  Cas.  No.  7,503 ;  Bouvier  L. 
Die,  word  "property."     A  mining  right  in  government  land  is 
property  in  the  miner,  and  property  of  value,  and  may  be  taxed 
by  the  state,  and  the  state  may  sell  it  for  taxes.     Forbes  v.  Gracey, 
94  U.  S.  762,  24  L.  Ed.  313.    I  repeat  that  plainly  the  ri^ht  vested 
in  the  coal  company,  and  being  actually  exercised,  is  property,  and 
the  Legislature  has  full  power  to  tax  it  in  some  manner.     *     •     • 
In  what  manner  shall  it  be  taxed,  as  real  or  personal  property? 
The  Legislature  has  enacted  that  all  property,  real  and  personal, 
shall  be  taxed.    The  tax  commissioner  claims  in  behalf  of  the  state 
that  this  mining  right  is  personal  property,  and  of  that  kind  called 
by  the  law  "chattels  real,"  and  as  section  61  of  chapter  35,  p.  309, 
Acts  of  1895,  defines  "personal  property"  as  including  chattels 
real^   and   other  sections   direct   their  taxation,   his   direction  to 
assessors  is  to  tax  chattels  real,  as  personalty,  and  the  assessor  will 
charge  the  said  right  of  the  company.     The  company  claims  that 
its  right  is  not  a  chattel  real,  not  personalty,  but  real  estate,  and 
cannot  be  charged  to  it  as  personal  property,  but  can  be  charged 
only  as  real  estate  to  the  owner  of  the  land  itself,  and  that  the 
charge  of  the  tax  to  the  owner  covers,  includes  the  right  of  the 
company.     As  the  act  declares  that  personal  property  shall  be 
taxed,  if  the  company's  right  is  a  chattel  real,  which  always  has 
been  regarded  in  law  as  personal  property,  briefs  in  the  case  argue 
that  that  is  alone  a  warrant  to  charge  the  leasehold ;  but,  if  it  is  a 
chattel  real,  we  do  not  have  to  pass  on  that  question,  because  the 
statute,  as  we  hold,  expressly  taxes  chattels  real.    What,  then,  is 
the  character  of  that  property  conferred  upon  the  defendant  by  its 
deed?     A  "freehold"  is  an  estate  for  life  or  in  fee;  a  "chattel 
real"  for  a  less  estate.    Volume  22  Am.  &  Eng.  Enc.  Law  (2d  Ed.) 
defines  it  thus:    "An  estate  in  land  other  than  one  for  life  or 
inheritance."    Tucker's  Com.  2,  p.  305,  defines  chattels  real  thus: 
"Chattels  real,  saith  Sir  Edward  Coke,  are  such  as  concern,  or 
savor  of  the  realty:    as  terms  for  years  in  land,  wardships  in 
chivalry  (while  military  tenures  subsisted),  the  next  presentation 
to  a  church,  estates  by  a  statute  merchant,  statutes-staple,  elegit, 
or  the  like ;  of  all  of  which  we  have  already  spoken.    And  these  are 
called  real  chattels,  as  being  interests  issuing  out  of,  or  annexed  to, 
real  estate;  of  which  they  have  one  qualit}^  viz.,  immobility,  which 
denominates  them  real,  but  want  the  other,  viz.,  a  sufficient  legal, 


4  Cases  on  Personal  Property 

indeterminate  duration;  and  this  want  it  is  that  constitutes  them 
chattels.  The  utmost  period  for  which  they  can  last  is  fixed  and 
determinate,  either  for  such  a  space  of  time  certain,  or  until  such 
a  particular  sum  of  money  be  raised  out  of  such  a  particular 
income;  so  that  they  are  not  equal  in  the  eye  of  the  law  to  the 
lowest  estate  of  freehold,  a  lease  for  another's  life,"  See  7  Cyc. 
123.  Bouvier's  Law  Dictionary  says:  **Real  chattels  are  interests 
which  are  annexed  to  or  concern  real  estate,  as  a  lease  for  years  of 
land.  And  the  duration  of  the  lease  is  immaterial,  whether  it  be 
for  one  or  a  thousand  years,  provided  there  be  a  certainty  about 
it,  and  a  reversion  or  remainder  in  some  person."  A  "lease"  is 
defined  by  Bouvier  to  be :  "A  species  of  contract  for  the  possession 
and  profits  of  lands  and  tenements  either  for  life  or  for  a  term  of 
years  or  during  the  pleasure  of  the  parties.  A  conveyance  by  way 
of  demise  always  for  a  less  term  than  the  party  conveying  has  in 
the  premises.  One  of  the  essential  features  is  that  its  duration 
must  be  for  a  shorter  period  than  the  duration  of  the  interests  of 
the  lessor  in  the  land,  for  if  he  disposes  of  his  entire  interest  it 
becomes  an  assignment,  and  is  not  a  lease.  In  other  words,  the 
granting  of  a  lease  always  supposes  that  the  grantor  reserves  in 
himself  a  reversion. ' »     *     *     * 

Try  this  property  or  right  under  these  definitions.  It  is  surely 
a  lease,  and  therefore  a  chattel  real.  The  fee  owner  carves  out  of 
his  fee  a  particular  estate  and  vests  it  in  another.  The  coal  having 
been  developed,  then,  if  not  before,  an  actual  estate  vested  as  to 
the  coal  right,  an  entity,  a  distinct  entity,  a  separate  property  from 
that  remaining  in  the  lessor.  The  instrument  of  conveyance  gave 
certain  title  to  the  coal  company,  gave  it  an  intangible  right ;  that 
is,  a  right  to  produce  personal  property,  a  product  of  the  land. 
This  right  savored  of  the  realty,  depended  on  it,  was  annexed  to  it, 
and  so  far  answers  the  definition  of  a  chattel  real,  which  is  personal 
estate.  "We  say  that  the  estate  of  the  coal  company  is  a  lease  for 
years,  and,  if  so,  by  all  authority  a  chattel  real.  *  *  *  ^  lease 
for  99  years,  renewable  forever,  by  common  law  is  only  a  chattel. 

5  Am.  &  Eng.  Enc.  Law.  1024.  The  grant  is  only  until  all  the 
coal  be  mined — in  character  like  a  lease  until  out  of  the  profits  a 
debt  shall  be  paid,  and  that  is  a  chattel  real  by  the  definitions 
above  given.  *  *  *  The  present  is  a  mere  lease  under  this 
authority. 

It  is  said,  however,  that,  when  the  coal  shall  be  exhausted,  there 
will  be  nothing  to  revert  to  the  landowner,  and  that  this  repels  the 
idea  that  the  right  of  the  company  is  a  chattel  real,  as  there  must 


Property  Defined  and  Cl.vssified  5 

be  a  reversion  or  remainder  to  make  a  chattel  real.  The  answer  is 
that  the  grant  is  not  of  the  very  coal.  The  phrase  of  the  deed  is 
not  that.  It  leases  the  coal.  It  lets  the  tract  itself  to  be  used  for 
a  special  limited  purpose.  It  gives  an  intangible,  incorporeal  thing, 
a  right  to  take  actual  possession  of  the  tract  and  use  it  so  far  as 
necessary  to  take  coal  and  make  coke.  When  the  term  in  this 
intangible  right,  savoring  of  the  land,  ends,  that  is  at  an  end,  not 
the  mere  coal.  There  are  many  cases  bearing  on  the  subject  and 
somewhat  clashing.  In  this,  as  in  most  other  cases,  there  is  a 
wilderness  of  decisions,  and  it  is  impossible  in  an  opinion  to  attempt 
to  analyze  them.  The  best  the  court  can  do  in  the  great  volume  of 
conflicting  cases  is  to  select  those  which,  in  its  judgment,  best  suit 
the  particular  case  as  a  basis  of  decision  for  that  case.  An  agree- 
ment conveying  all  coal  in  a  tract  with  the  right  to  remove  for  50 
years  was  termed  a  lease.  Hyatt  v.  Vincennes,  113  U.  S.  408,  5  Sup. 
Ct.  573,  28  L.  Ed.  1009.  *  *  *  in  Haywood  v.  Fulmer  (Ind. 
Sup.),  32  N.  E.  574,  18  L.  R.  A.  491,  the  construction  was  involved 
of  a  writing  which  acknowledged  the  receipt  of  $175  in  payment 
of  a  sand  bar  for  the  year  1890,  and  recited  that  it  was  for  the 
exclusive  right  to  all  gravel  and  sand  for  that  year,  and  excluded 
all  other  parties  from  the  premises.  The  question  was  whether  it 
was  a  lease,  a  license,  an  executory  agreement,  or  an  interest  in  the 
sand  bar.  The  court  said :  ''A  lease  may  not  only  confer  upon  the 
lessee  the  right  to  the  occupancy  of  the  leased  premises,  either 
generally,  or  for  the  land,  or  for  some  specific  purpose,  or  in  some 
specific  manner,  or  the  right  to  occupy  and  cultivate  and  remove 
products  of  cultivation ;  but  it  may  confer  upon  him  the  power  to 
occupy  and  remove  a  portion  of  that  which  constitutes  the  land 
itself.  Similar  and  common  examples  of  such  leases  are  those 
authorizing  a  lessee  to  quarry  and  remove  stone,  to  open  mines 
and  remove  ores,  mineral,  coal,  or  to  sink  wells  for  procuring  and 
removing  petroleum  and  natural  gas.  *  *  *  in  our  opinion, 
the  writing  in  question  contains  all  the  essential  elements  of  a 
valid  lease."  In  this  case,  the  Indiana  court  did  not  think  that  the 
fact  that  a  part  of  the  substance  of  the  soil  was  to  be  removed 
gave  it  any  other  cast  than  that  of  a  lease.  *  *  *  ji^  notable 
case  is  that  of  State  v.  Moore,  12  Cal.  56.  The  case  was  decided 
by  Judges  Terry,  Baldwin,  and  Field;  the  last  afterwards  a  justice 
of  the  Supremo  Court.  The  case  wa,s  maturely  considered.  In 
California  mining  claims  were  the  x>roperty  of  the  United  States,, 
and  not  subject  to  taxation.  The  court,  however,  hold  that  the 
interests  of  the  occupants  of  the  mining  claims  were  a  distinct 


6  Cases  on  Personal  Property 

species  of  property,  severable  from  the  mining  claim  of  which  it 
was  a  part,  and  that,  being  so  severable,  it  conlcl  be  assessed  and 
taxed  as  the  property  of  the  owner.     *     *     * 

*  *  *  The  plaintiff  bases  its  theory  that  it  does  not  own  a 
chattel  real  taxable  as  personalty  to  it  on  certain  Pennsylvania 
cases,  and  cites  them  with  confidence.  A  leading  Pennsylvania 
case  is  Sanderson  v.  Scranton,  105  Pa.  469.  *  *  *  The  deed  in 
our  case  igrants  the  tract  for  a  specific  purpose;  that  is,  with  the 
right  to  mine  coal,  and  make  coke,  and  does  not  grant  even  the 
coal  itself;  whereas,  the  Pennsylvania  cases  show  deeds  granting, 
not  the  land,  not  the  tract,  but  all  the  coal.  The  Court  of  Appeals 
of  New  York,  in  Genet  v.  Delaware  Coal,  136  N.  Y.  603,  32  N.  E. 
1080  (19  L.  R.  A.  127),  referred  to  the  Pennsylvania  cases  and 
said:  "Whatever  we  may  think  of  the  general  doctrine,  one  thing 
about  it  is  quite  obvious.  It  applies  to  a  case,  and  only  to  a  case,  in 
which  by  the  terms  of  the  agreement  and  in  contemplation  of  the 
parties  the  whole  body  of  the  coal,  considered  as  of  cubical  dimen- 
sions and  capable  of  descriptive  separation  from  the  earth  above 
and  around  it,  and  as  it  lies  in  its  place,  is  absolutely  and  presently 
conveyed.     *     *     * 

It  seems  that  the  above  Pennsylvania  cases  holding  that  an  oil 
or  coal  lease  conveys  an  interest  in  the  land  conflicts  with  other 
Pennsylvania  cases  holding  them  to  create  a  chattel  interest  salable 
on  execution.  In  Brown  v.  Beecher,  120  Pa.  590,  15  Atl.  608,  we 
find  this  point  of  law  decided:  "A  demise  of  land  for  a  term  of 
years,  'with  the  sole  and  exclusive  right  and  privilege  during  said 
period  of  digging  and  boring  for  oil  and  other  minerals,  and  of 
gathering  and  collecting  the  same  therefrom,'  conveys  an  interest 
in  the  land,  a  chattel  real,  but  none  the  less  a  chattel."     *     *     * 

*  *  *  Just  as  I  have  once  said,  above,  in  this  ease  the  coal 
company  has  right  of  possession  of  the  coal  and  of  the  land  to  mine 
that  coal,  but  no  title  to  the  very  coal  or  land  —  only  a  right  to 
coal  in  connection  with  the  intangible  right  to  produce  coal,  to  make 
it  personal  property  for  market.  These  leases,  in  their  plain  import, 
mean  that  the  surface  owner  owns  the  whole  land  and  every^thing  in 
place  in  it,  and  that  the  lessee  simply  has  a  usufructuary  right  in 
connection  with  the  land,  right  to  use  the  land  for  a  purpose,  a  ter- 
minable right,  which  may  be  long  or  short  in  years ;  that  is,  a  mere 
chattel  real,  issuing  out  of  lands,  but  constituting  a  distinct  estate, 
a  valuable  one  as  property,  and  which  is  property,  and  therefore 
taxable,  if  the  state  see  proper  to  do  so.  It  must  be  a  mere  lease- 
hold, a  chattel  real.    Not  being  a  freehold,  and  being  incorporeal. 


Property  Defined  and  Classified  7 

a  mere  right  to  use  the  land  for  a  purpose,  what  can  it  be  but  a 
leasehold  for  years?  It  must  be  something  in  the  legal  eye.  It 
cannot  be  nondescript.  *  *  *  These  leases  have,  even  after 
production,  been  held  to  still  leave  the  oil  and  gas  in  situ  in  the 
ownership  of  the  lessor,  and  not  to  be  taxed  to  the  lessee  as  real 
estate  —  I  say  as  real  estate.  This  shows  that  these  instruments 
do  not  convey  the  oil  and  gas.  The  cases  have  held  that  they  cannot 
be  taxed  as  realty,  but  they  do  not  pass  on  their  taxability  as  per- 
sonal property.  Our  tax  laws  long  have  provided  that  all  personal 
property  shall  be  taxed,  but  these  leases  for  coal,  oil,  and  gas  have 
never  been  taxed  on  the  personal  property  books  in  the  past  and 
the  question  of  their  taxability  has  never  arisen.  Until  chapter 
35,  p.  285,  Acts  1905,  the  tax  law  did  not  include  chattels  real  as 
specific  subjects  of  taxation.  *  *  *  "Whether  the  distinction 
seems  refined  or  not,  it  is  real  in  legal  thought,  for  a  leasehold  is  not 
the  wheat  or  corn  produced  under  the  right  conferred  by  the  lease. 
The  lease  is  a  thing  apart  from  the  commodities  produced  under  the 
right  conferred  by  it.-  The  common  law  has  always  recognized 
chattels  real  as  distinct  property,  taxable  if  the  Legislature  should 
so  direct,  and  therefore  this  distinction  is  not  new  or  unheard  of 
or  refined — I  mean  the  discrimination  of  the  leasehold  from  the 
fee  ownership  out  of  which  it  issues.  The  law  has  always  recog- 
nized it.  A  chattel  real  is  a  thing  of  property,  in  and  of  itself, 
known  to  the  law  through  centuries,  and  is  not  the  coal,  oil,  wheat, 
or  corn  produced  from  the  soil  by  virtue  of  the  right  arising  from 
it.  They  are  realty  while  attached  to  the  land,  personalty  when 
severed.  The  leasehold  is  an  entity  per  se,  not  an  empty  shadow 
or  gauze.  *  *  *  Before  1905  the  statute  did  not  expressly  charge , 
chattels  real  as  personal  property,  as  does  the  act  of  1905.  True, 
Code  1899,  c.  13,  §17,  els.  15,  16,  says:  "The  words,  'personal 
estate'  or  'personal  property'  include  goods,  chattels,  real  and  per- 
sonal, money  credits,  investments  and  the  evidence  thereof."  "The 
word  'land'  or  'lands'  and  the  words  'real  estate'  or  'real  property' 
include  lands,  tenements  and  hereditaments,  and  all  rights  thereto 
and  interests  therein  except  chattel  interests."  This  shows  that 
chattels  real  were  never  land,  but  personal  property.  From  these 
clauses  it  may  be  argued  that  chattels  real  were  taxable  as  per- 
sonal property,  especially  as  chapter  29,  §  48,  taxed  "all  personal 
property."  It  may  be  so.  We  do  not  say,  as  we  are  not  passing 
on  the  prior  law.  *  *  *  Acts  1904,  p  56,  c.  4.  Acts  1905, 
p.  309,  c.  35,  makes  section  61  of  chapter  29  of  the  Code  read  thus: 
"The  words  'personal  property,'  used  in  this  chapter,  shall  include 


8  Cases  on  Personal  Property 

all  fixtures  attached  to  land,  if  not  included  in  the  valuation  of  such 
land  entered  in  the  proper  land  book;  all  things  of  value  movable 
and  tangible  which  are  the  subject  of  ownership ;  all  chattels,  real 
and  personal ;  all  moneys,  credits  and  investments  as  defined  in  the 
following  section.  The  word  'land'  or  'lands'  and  words  'real 
estate,'  or  'real  property'  include  lands,  tenements  and  heredita- 
ments, and  all  rights  thereto  and  interests  therein,  except  chattel 
interests  and  chattels  real."  It  may  be  argued  with  force  that 
chattels  real,  not  being  "movable  and  tangible,"  and  not 
being  mentioned  for  taxation  in  section  61  of  the  prior  law,  were 
not  taxable,  as  the  rule  of  construction  is  that,  though  certain  words 
are  given  by  the  Code  a  general  meaning  in  the  construction  of 
statutes,  they  would  not  have  that  meaning  in  construing  a  particu- 
lar chapter  or  section  which  itself,  for  its  own  purposes,  gives  it  a 
different  or  limited  meaning.  But  we  do  not  say  as  to  this.  We 
do  say,  however,  that  chattels  real  are  in  words  made  a  subject  of 
taxation  by  the  letter  of  the  act  of  1905,  on  which  this  case  turns. 
We  cannot  decide  the  case  by  decisions  resting  on  a  prior  different 
statute. 

*  *  *  The  old  law  did  not  include  leaseholds  in  the  valua- 
tion of  the  land  or  mineral  in  place,  neither  does  the  new,  but  the 
new  law  charges  chattels  real  as  personal  property.  For  the  first 
time,  the  new  law  selects  them  for  taxation  in  words.  *  *  * 
As  above  stated,  the  statute  has  never  in  words  required  chattels 
real  to  be  separately  assessed  until  the  act  of  1905.  That  makes 
them  specific  subjects  of  taxation.  Never  has  there  been  a  time 
when  by  common  law  a  chattel  real  had  not  legal  entity  as  an 
estate  of  value,  a  property,  distinct  from  the  body  of  land  of 
which  it  savored,  and  therefore  the  state  has  indisputable  power 
to  tax  it  as  such  distinct  property.  By  the  very  act  of  taxing  it 
the  Legislature  has  given  the  chattel  real,  for  purposes  of  taxa- 
tion, distinct  existence,  if  it  had  not  had  it  before,  and  made  it 
a  tax  subject.  No  matter  how  many  estates  or  interests  in  land 
there  may  be,  the  state  can,  if  it  choose,  tax  each  separately. 
From  law  cited  above,  property  in  any  form  can  be  taxed.  "The 
term  'property,'  standing  unqualified  in  a  Constitution  with  stat- 
utes designating  subject  of  taxation,  includes  both  real  and  per- 
sonal property,  or  estate,  intangible,  as  well  as  tangible,  rights 
of  value."     *     *    * 

*  *  *  The  old  section  defined  personal  property  so  as  not  to 
include  chattels,  as  seen  above  in  its  quotation.  It  did  not  make 
personal  property,  in  terms,  include  chattels  real.     The  new  sec- 


Property  Defined  and  Classified  9 

tion  does,  and  moreover  excludes  from  the  meaning  of  "land" 
chattels  real.  How  can  it  be  doubted  for  a  moment  that  the  intent 
-was  to  tax  chattels  real,  not  as  land,  but  as  personal  property? 
The  new  section  inserts  ' '  chattels  real ' '  as  coming  within  the  mean- 
ing of  personal  property,  and  excepts  chattels  real  from  land 
taxation,  and  new  section  63,  as  also  section  12,  says  that  "all 
personal  property"  shall  be  taxed  and  hence  chattels  real  must  be 
taxed.     *     *     * 

*  *  *  The  Legislature  in  1905  simply  taxed  what  never  had 
been  taxed  in  taxing  the  leaseholds  of  the  lessee.  State  v.  South 
Penn,  42  W.  Va.  on  page  99,  24  S.  E.  on  page  695,  says  this: 
"What,  then,  is  the  subject-matter  of  the  act  of  reassessment  of 
1891,  and  does  the  property  [these  oil  leases]  belong  to  such  subject 
matter  within  the  meaning  of  the  act  ?  We  may  expect  to  find  the 
object,  the  main  general  purpose,  of  the  act  expressed  in  the  title. 
The  title  is  "an  act  to  provide  for  the  reassessment  of  the  value 
of  all  real  estate  within  this  state.  By  a  statutory  rule  of  con- 
stmction,  the  word  'land'  or  'lands'  and  the  words  'real  estate' 
or  'real  property'  include  lands,  tenements  and  hereditaments,  and 
all  rights  thereto,  and  interests  therein,  except  chattel  interests, 
unless  a  different  intent  on  the  part  of  the  Legislature  be  apparent 
from  the  context.  See  Code,  1899,  c.  13,  §  17,  par.  15.  In  the 
assessment  law,  the  term  'property'  is  used  not  in  the  sense  of 
right  of  ownership,  but  of  the  thing  owned,  which  is  listed  for 
taxation  opposite  the  name  of  the  owner.  The  context  shows  that 
oil  and  gas  underlying  the  surface,  and  within  the  location  of 
land,  shall  be  considered  in  ascertaining  the  value  of  such  land, 
and,  when  oil  or  gas  privileges  or  interests  are  held  by  a  party 
exclusive  of  the  surface,  the  same  shall  be  assessed  separately  to 
such  parties — the  land  to  the  one,  the  oil  privilege  to  the 
others."     *     *     * 

*  *  *  The  Legislature  has  plainly  expressed  its  will  that  these 
chattels  real  shall  be  taxed,  and,  it  being  within  the  taxing  power 
of  the  state,  it  ill  becomes  a  court  to  defeat  and  frustrate  the  public 
and  legislative  will. 

For  these  reasons  we  affirm  the  decree  of  the  circuit  judge. 

Affirmed} 

I  See  Childs'  Personal  Property,  §1. 


10  Cases  on  Personal,  Property 

CITY  OF  ST.  LOUIS  v.  HILL. 
116  Mo.  527,  22  S.  W.  861.     1893. 
The  defendant,  Hill,  was  convicted  of  violating  a  city  ordinance. 
The  facts  as  stated  by  the  court  are  as  follows : 

The  defendant  was  arrested  upon  an  information  lodged  against 
him  in  the  first  district  police  court  of  St.  Louis  for  violating 
Ordinance  16,450  of  the  plaintiff  city,  relating  to  Forest  Park 
boulevard.  *  *  *  The  record  discloses  that  on  the  11th  day 
of  November,  1892,  the  defendant,  on  premises  on  the  north  side 
of  Forest  Park  boulevard,  between  Cabanne  street  and  Vandeventer 
avenue,  of  which  the  defendant  was  then  and  there  the  owner  in 
fee,  which  premises  were  within  the  district  covered  by  said  Or- 
dinance No.  16,450,  in  the  city  of  St.  Louis,  did  erect  a  certain 
dwelling  house  within  the  distance  of  40  feet,  to  wit  within  15  feet 
from  the  north  line  of  said  Forest  Park  boulevard,  said  house  not 
conforming  to  the  uniform  building  line  of  said  Forest  Park  boule- 
vard, as  prescribed  by  said  Ordinance  No.  16,450.  The  defendant 
filed  a  written  motion  for  discharge,  upon  the  ground  that  the  said 
Ordinance  No.  16,450  is  unconstitutional  and  void,  in  that  it  is 
contrary  to  and  in  violation  of  sections  20,  21,  and  30  of  article 
2  of  the  constitution  of  the  state  of  Missouri.  The  St.  Louis  court 
of  criminal  correction,  to  which  court  the  case  had  previously  been 
appealed  from  said  first  district  police  court,  overruled  said  motion, 
found  the  defendant  guilty,  and  fined  him  $500  and  costs.  Hence 
this  appeal.     *     *     * 

Sherv^ood,  J. — As  already  disclosed  by  the  record,  the  constitu- 
tionality of  what  is  commonly  known  as  the  "Boulevard  Law"  is 
called  in  question  by  this  appeal.  The  provisions  of  the  organic 
law  cited  by  defendant  as  pertinent  to  this  controversy  are  these : 
"Sec.  21.  That  private  property  shall  not  be  taken  or  damaged 
for  public  use  without  just  compensation.  Such  compensation  shall 
be  ascertained  by  a  jury  or  board  of  commissioners  of  not  less  than 
three  freeholders,  in  such  manner  as  may  be  prescribed  by  law ;  and 
until  the  same  shall  be  paid  to  the  owner,  or  into  court  for  the  owner, 
the  property  shall  not  be  disturbed,  or  the  proprietary  rights  of  the 
owner  therein  divested."  "Sec.  30.  That  no  person  shall  be  de- 
prived of  life,  liberty,  or  property  without  due  process  of  law." 


Property  Defined  and  Classified  11 

Article  2,  Const.  1875.  It  is  urged  on  behalf  of  plaintiff  that  there 
has  been  no  "taking"  of  private  property  under  this  law  and 
ordinance,  because  the  ** title"  to  the  property,  and  the  right  to 
use  the  same,  are  still  in  the  defendant.  This  contention  brings 
into  prominence  the  true  import  of  the  word  "property."  The 
general  result  of  various  definitions  of  the  term  is  that  it  is  the 
exclusive  right  of  any  person  to  freely  use,  enjoy,  and  dispose  of 
any  determinate  object,  whether  real  or  personal.  1  Bl.  Comm.  138 ; 
2  Aust.  Jur.  817,  818 ;  19  Amer.  &  Eng.  Enc.  Law,  2'84,  and  cases 
cited;  Lewis,  Em.  Dom.  §§  57-59;  Eaton  v.  Railroad  Co.,  51  N.  H. 
504 ;  Thompson  v.  Improvement  Co.,  54  N.  H.  545 ;  Wynehamer  v. 
People,  13  N.  Y.  378.  Sometimes  the  term  is  applied  to  the  thing 
itself,  as  to  a  horse  or  a  tract  of  land.  These  things,  however, 
though  the  subjects  of  property,  are,  when  coupled  with  posses- 
sion, but  the  indicia,  the  visible  manifestations,  of  invisible  rights, 
"the  evidence  of  things  not  seen."  Property,  then,  in  a  deter- 
minate object,  is  composed  of  certain  constituent  elements,  to  wit, 
the  unrestricted  right  of  use,  enjoyment,  and  disposal  of  that  object. 
It  follows  from  this  premise  that  anything  which  destroys  or  sub- 
verts any  of  the  essential  elements  aforesaid  is  a  taking  or  destruc- 
tion pro  tanto  of  property,  though  the  possession  and  power  of 
disposal  of  the  land  remain  undisturbed,  and  though  there  be  no 
actual  or  physical  invasion  of  the  locus  in  quo.  Cooley,  Const. 
Lim.  (6th  Ed.)  670;  Wynehamer  v.  People,  13  N.  Y.  loc.  cit.  433, 
per  Selden,  J. ;  People  v.  Otis,  90  N.  Y.  loc.  cit.  52,  per  Andrews, 
C.  J.  The  use  of  a  given  object  is  the  most  essential  and  beneficial^ 
quality  or  attribute  of  property.  Without  it,  all  other  elements^ 
which  go  to  make  up  property  would  be  of  no  effect.  If  the  city 
were  allowed  to  deprive  the  defendant  of  the  use  of  his  entire  lot, 
it  would  leave  in  his  hands  but  a  barren  and  Barmecidal  title;  and 
what  is  true  of  property  rights  as  an  integer  is  true  of  each  frac- 
tional portion.  If  plaintiff's  theory  be  correct,  then  the  city  could 
pass  and  enforce  an  ordinance  which  would  deprive  defendant  of 
the  use  of  his  entire  lot,  and  still  there  would  be  no  "taking," 
within  the  term.s  of  section  21,  art.  2,  of  the  constitution,  and  conse- 
quently no  right  to  compensation.  The  statement  of  such  a  po- 
sition is  sufficient  to  accomplish  its  utter  repudiation.     *     *     * 

*  *  *  For  reasons  aforesaid,  we  reverse  the  jndgiiiont,  and, 
as  it  is  apparent  that  the  city  has  no  standing  in  court,  we  will  not 
remand  the  cause.    All  concur.2 

2  See  Childs '  Personal  Property,  §  1. 


12  Cases  on  Personal  Property 

Personal  Property  Defined. 

BOYD  V.  CITY  OF  SELMA  et  al. 

96  Ala.  144, 11  So.  393, 16  L.  B.  A.  729.     1892. 

[William  E.  Boyd  filed  bill  against  the  city  of  Selma  and  A.  J. 
Goodwin,  tax  collector,  to  restrain  said  parties  from  collecting  a 
tax.  The  defendants  demurred  to  the  bill  and  the  demurrer  was 
sustained,  whereupon  the  complainant  appealed.] 

The  facts  are  stated  in  the  opinion. 

Thorington,  J. — ^Appellant  filed  his  bill  of  complaint  in  the 
chancery  court  of  Dallas  county,  averring  the  following  state  of 
facts:  Appellee  Selma  is  a  municipality  incorporated  under  the 
laws  of  this  state  by  that  name,  and  among  other  powers  conferred 
on  it  by  its  charter  is  the  following:  ''That  the  mayor  and  coun- 
cilmen  of  said  Selma  shall  have  the  power  to  levy  taxes  on  real 
and  personal  property,  capital  employed  in  any  business  carried 
on  in  said  city,"  etc.  Since  1884  the  said  city  has  had  an  ordinance 
in  operation  and  effect  authorizing  and  providing  for  the  taxa- 
tion of  "all  moneys  loaned,  and  their  value,  after  deducting  the 
indebtedness  of  the  taxpayer."  On  the  1st  day  of  May,  1890,  which 
was  the  beginning  of  the  city  tax  year  for  1890-91,  appellant,  who 
resides  in  said  eity,  duly  returned  his  list  of  property  taxable  by 
said  city  to  the  city  assessor,  showing  real  property  to  the  amount 
of  $3,000  in  value,  and  personal  property  to  the  value  of  $533,  of 
which  personal  property  $200  was  exempt  by  law  from  taxation, 
and  which  exemption  was  so  claimed  on  said  list.  After  said  list 
was  so  returned  the  assessor,  without  appellant's  knowledge,  added 
thereto,  under  the  head  of  ''All  moneys  loaned  and  solvent  credits, 
or  credits  of  value,  and  their  value,  after  deducting  the  indebted- 
ness of  the  taxpayer,"  an  item  of  $25,262,  which  is  stated  by  the 
assessor  in  writing  on  said  list  to  have  been  "added  from  informa- 
tion from  county  assessor's  book,"  which  item  had  been  assessed  to 
appellant  for  state  taxation  in  Dallas  county  for  the  pending  year. 
Said  sum  represented  negotiable  promissory  notes,  for  so  much 
money  loaned  by  appellant,  payable  to  him  or  his  order  in  Birming- 
ham, Ala.,  and  are  secured  by  mortgages  on  real  property  in  said 
last-named  city.  The  makers  of  said  notes  all  reside  in  Birmingham, 
and  the  notes  themselves,  since  March,  1890,  have  been  and  now 


Property  Defined  and  Classified  13 

are  in  said  city,  in  the  hands  of  appellant's  agent  there,  for  collection 
of  interest  and  the  reinvestment  thereof,  with  the  exception  of 
one  note  for  $100,  which  is  in  appellant's  possession  in  Selma. 
Appellant,  before  his  bill  was  filed,  applied  to  the  mayor  and  conn- 
cilmen  of  Selma  to  cancel  the  said  item  of  $25,262,  so  added  to  his 
tax  list  by  the  assessor,  but,  after  hearing  on  his  petition,  they  refused 
so  to  do.  *  *  *  The  bill  prays  for  an  injunction  to  restrain  the 
collection  of  the  alleged  illegal  portion  of  the  tax.  *  *  *  To 
this  bill  appellees  demurred,  the  demurrer  was  sustained  by  the 
chancery  court,  and,  appellant  failing  to  amend  his  bill,  it  was  dis- 
missed.    *     *     * 

The  two  controlling  questions  are  whether  the  bill  makes  out  a 
case  coming  within  some  ground  of  equitable  jurisdiction  connected 
with  the  alleged  illegality  of  the  tax,  and  whether  solvent  credits 
or  negotiable  promissory  notes  arc  taxable  at  the  domicile  of  the 
owner,  or  whether  the  situs  of  such  property,  and  not  the  domicile 
of  the  owner,  determines  the  liability  to  taxation,  and  these  ques- 
tions we  will  consider  in  the  inverse  order  to  that  in  which  they  are 
above  stated.  Preliminary  to  these  two  questions,  however,  we 
will  notice  the  proposition  argued  by  appellant's  counsel,  that 
negotiable  promissory  notes  are  not  embraced  in  the  term  "per- 
sonal property,"  found  in  section  27  of  the  charter  of  Selma,  above 
quoted.  *  *  *  The  state  has  power  to  tax,  and  does  tax,  sol- 
vent credits,  including  negotiable  promissory  notes.  It  appears, 
from  an  inspection  of  the  charter  of  Selma  (Acts  1882-83,  p.  396) 
that  the  power  is  not  conferred  on  said  city  to  tax  such  property 
eo  nomine,  but  the  power  is  given  in  express  terms  to  tax  real  and 
personal  property;  and,  if  the  term  "personal  property"  can  be 
said  to  embrace  choses  in  action,  then  it  is  undeniable  that  the 
charter  confers  upon  the  city  express  power  to  tax  that  species  of 
property.  This  is  as  truly  axiomatic  as  that  the  whole  includes 
all  its  parts.  In  its  general  or  ordinary  significance,  the  term  "per- 
sonal property"  embraces  all  objects  and  rights  which  are  capable 
of  ownership,  except  freehold  estates  in  land,  and  incorporeal 
hereditaments  issuing  thereout,  or  exercisable  within  the  same." 
18  Amer.  &  Eng.  Enc.  Law,  p.  408.  And,  when  used  in  statutes 
authorizing  the  imposition  of  taxes,  the  word  "property,"  with- 
out the  qualifying  term  "per.sonal,"  will  be  held  without  further 
signification  to  include  solvent  credits.  1  Desty,  Tax'n,  pp.  318, 
319;  Cooley,  Tax'n,  p.  372;  Association  v.  Austin,  46  Cal.  415; 
People  V.  Park,  23  Cal.  138 ;  Louisville  v.  Henning,  1  Bush.  381 ; 
Catlin  v.  Hull,  21  Vt.  152.    So  in  this  state  the  words  "personal 


14  Cases  on  Person.u.  Property 

property,"  employed  in  exemption  statutes,  have  been  construed 
to  include  money,  clioses  in  action,  and  even  a  claim  for  damages 
resulting  from  negligence.  Borden  v.  Bradshaw,  68  Ala.  363 ;  Dar- 
den  V.  Reese,  62  Ala.  311 ;  Williamson  v.  Harris,  57  Ala.  40. 

In  the  definition  of  terms  given  in  the  Code,  §  2,  subd.  3,  the 
words  ''personal  property"  include  ''money,  goods,  chattels,  things 
in  action,  and  evidences  of  debt,"  etc.;  but  that  definition  only 
applies  to  the  words  "personal  property,"  as  used  in  the  Code, 
and  is  not  a  general,  authoritative  definition,  attaching  to  said  terms, 
as  found  in  all  legislative  enactments  of  this  state,  general  and 
special.  Whatever  effect  this  section  may  have  upon  general  enact- 
ments since  the  Code  in  which  these  words  occur,  when  found  in 
special  statutes  enacted  either  before  or  since  the  Code,  they  have 
the  usual  and  ordinary  meaning  attaching  thereto,  unless  other- 
wise limited  or  qualified  by  the  context.  In  the  section  of  the 
charter  of  Selma  herein  quoted  we  do  not  find  in  the  context  any 
associated  words,  which  give  to  the  term  "personal  property"  a 
narrower  or  different  meaning  from  that  found  in  the  authorities 
we  have  cited  above.  True,  some  of  the  items  of  personal  property 
specifically  mentioned  in  the  section  would,  according  to  the  gen- 
eral definition  given  in  the  citations,  fall  within  the  generic  term, 
and  some  would  not ;  but  the  former  appear  to  have  been  particular- 
ized ex  industria,  or  by  way  of  precaution,  and  not  with  the  intent  to 
limit  the  preceding  general  words.  We  think  it  clear  that  the  term 
"personal  property,"  as  used  in  section  27  of  the  charter  of  said 
city,  includes  solvent  credits  and  choses  in  action,  and  consequently 
that  such  property  is  liable  to  taxation  by  said  city  in  the  manner, 
and  to  the  extent  provided  by  its  charter.  Practically  the  same 
question  was  settled  by  this  court  in  the  case  of  St.  John  Powers 
&  Co.  V.  Mayor,  etc.,  21  Ala.  224,  where  it  was  held  that  the  char- 
ter of  that  city,  which  authorized  it  to  tax  "real  and  personal 
estate  within  the  city,"  included  the  power  to  tax  bills  of  exchange, 
notes,  etc.  To  the  same  effect  is  the  case  of  Town  of  Paris  v. 
Farmers'  Bank,  30  Mo.  575. 

*  *  *  We  have  examined  the  authorities  cited  by  appellant  to 
the  effect  that  the  words  "personal  property"  do  not  include  solvent 
credits  or  choses  in  action,  and  also  that  the  power  given  to  a  mu- 
nicipal corporation  to  tax  property  within  the  city  applies  only  to 
visible,  tangible  property  within  the  corporate  limits;  but  they  are 
either  predicated  on  statutes,  the  particular  phraseology  of  which  is 
materially  variant  from  the  charter  of  Selma,  or  they  are  in  conflict 
with  the  weight  of  authority.    For  instance,  in  the  case  of  Pullen 


Property  Defined  and  Classified  15 

V.  Board,  68  N.  C.  451,  the  court  held  that  the  city  of  Raleigh  had 
no  power  to  tax  debts  and  securities.    But  it  was  so  held  on  the 
ground  that  the  charter  enumerates,  nominatim,  each  subject  of 
taxation,  and  that  no  one  subject  so  specified,  "by  the  utmost  stretch 
of  construction,  can  be  made  to  embrace  debts  and  securities  for 
money."    Also  that  the  words  "real  and  personal  property"  are 
used  in  the  state  constitution  in  a  sense  to  exclude  "credits  and 
investments."    And  in  the  case  of  Bank  v.  Huth,  4  B.  Mon.  423, 
no  question  of  taxation  was  involved.     It  was  simply  a  question 
whether  the  words  "real  or  personal  estate,"  as  employed  in  a  stat- 
ute requiring  mortgages  to  be  recorded,  embraced  choses  in  action 
or  claims  for  debts ;  and  it  was  held  they  did  not,  because  the  stat- 
ute designated  the  place  for  recording  as  the  county  "in  which  the 
estate  or  greater  part  thereof  lies;"  that  only  such  property  was 
embraced  in  the  words  "personal  estate,"  or  was  capable  of  having 
an  actual  situs,  and  therefore  "may  be  or  lie  in  a  certain  place  or 
county;"  and  that  choses  in  action  were  not  capable  of  a  situs  or 
local  position.    In  the  ease  of  Johnson  v.  City  of  Lexington,  14  B. 
Mon.  521,  it  was  held  that  the  terms  "personal  property"  and 
"personal  estate,"  as  used  in  the  Lexington  city  charter,  do  not 
embrace  debts  and  other  choses  in  action,  but  embrace  only  visible 
property,  and  that  the  city  had  no  power  to  tax  personal  property 
without  the  city,  but  that  such  power  is  confined  to  property  within 
the  city.    But  the  decision  was  put  on  the  ground  that  the  language 
of  the  charter  "renders  it  reasonably  certain  that  the  power  con- 
ferred  was  only  intended  to  embrace  such  personal  estate  as  is 
within  the  city,"  and  it  was  held  that  the  words  "personal  prop- 
erty" and  "personal  estate"  did  not  include  debts  and  other  choses 
in  action,  because  at  that  time  the  state  "had  not  adopted  the  prin- 
ciple of  taxation  by  which  the  money  and  choses  in  action  of  the 
citizen  are  not  made  liable  to  taxation;"  and  that  it  could  not, 
therefore,  be  presumed  that  the  state  then  intended  to  confer  on 
the  city  authorities  a  power  of  taxation  which  it  did  not  itself 
exercise.     *     *     *     Mr.  Cooley,  in  his  work  on  Taxation,  (2d  Ed. 
p.  22)  in  speaking  of  debts,  says:   "They  are  not  the  property  of 
the  debtors,  in  any  .sense ;  they  are  the  obligations  of  the  debtors, 
and  only  possess  value  in  the  hands  of  the  creditors.    "With  them 
they  are  property,  but  to  call  them  property  in  the  hands  of  debtors 
is  a  misuse  of  terms."    The  conclusion  we  reach  from  the  prin- 
ciples herein  discussed  and  the  authorities  cited  is  that  the  money 
loaned,  or  solvent  credits,  or  choses  in  action,  referred  to  in  the 
bill  of  complaint,  are  properly  taxable  in  and  by  the  city  of  Selma, 


16  Cases  on  Personal  Property 

where  appellant  resides.  The  city  charter  authorizes  the  assessor 
to  assess  property  for  escaped  taxes,  on  information,  and  no  ques- 
tion is  raised  by  appellant  as  to  the  regularity  of  the  assessment. 

*  *  *  There  was  no  error  in  the  decree  of  the  chancery  court 
sustaining  appellees'  demurrer,  and  dismissing  the  bill.  Its  decree 
is  accordingly  affirmed.^ 


Distinction  Between  Real  and  Personal  Property. 

HUNT,  TRUSTEE  v.  BULLOCK  et  al. 

23  111.320.    1860. 

[Bullock  et  al.  obtained  a  judgment  against  the  Terre  Haute, 
Alton  and  St.  Louis  Railroad  Co.  and  levied  an  execution  on  some 
fuel  and  office  furniture  owned  by  said  company.  One  Alva  Hunt, 
as  trustee  of  the  bondholders  of  the  railroad  company,  filed  a  bill 
to  restrain  Bullock  et  al.  from  selling,  on  execution,  said  fuel  and 
furniture. 

A  demurrer  to  the  bill  was  sustained  and  complainant  appealed.] 

Mr.  Justice  Walker. — ^We  shall  first  examine  whether  fuel  and 
office  furniture,  when  owned  by  a  railroad  company,  is  real  estate, 
and  the  company,  thereby,  not  required,  in  executing  a  mortgage 
on  such  articles,  to  comply  with  the  chattel  mortgage  law.  It  is 
too  plain  a  principle  to  require  argument  or  reference  to  authori- 
ties, that  there  is  a  marked  difference  between  real  and  personal 
estate.  All  commentators  and  judicial  determinations  on  the  sub- 
ject, have  held  that  real  estate  embraces  such  things  as  are  per- 
manent, fixed  and  immovable,  and  which  cannot  be  carried  out  of 
their  places,  as  lands  and  tenements.  While  personal  property  is 
defined  to  be  goods,  money,  and  all  other  movables  which  may 
attend  the  person  of  the  owner,  wherever  he  may  think  proper  to 
go.  While,  however,  these  broad  and  well-defined  distinctions  are 
universally  acquiesced  in  and  enforced,  both  in  this  country  and  in 
Great  Britain,  as  being  elementary,  and  lying  at  the  very  founda- 
tion of  our  system  of  jurisprudence,  there  have  been  and  are  still 
some  exceptions,  such  as  trade  fixtures  and  emblements  on  the  one 
hand  and  heir-looms  on  the  other. 

«  See  Ciilds '  Personal  Property,  \  2. 


Property  Defined  and  Classified  17 

This  property,  as  all  must  perceive,  is  not  permanent,  fixed  and 
immovable,  but  is  detached  and  separate  from  the  road  and  its  lands. 
It  may  be  with  convenience  removed  from  place  to  place,  and  does 
not  in  the  very  nature  of  things  bear  the  slightest  resemblance  to 
real  property.  It  on  the  contrary  has  every  element  of  personalty, 
and  cannot  be  considered  anything  else,  under  any  known  rule  of 
law.  It  has  not  been  held,  nor  was  it  urged,  that  such  property  falls 
within  the  exceptions  governing  trade  fixtures  or  implements,  nor 
can  it  be  so  regarded.  They,  in  their  nature  and  use,  resemble 
real  estate  or  real  fixtures  no  more  than  do  the  money,  books  and 
stationery  of  the  company.  As  between  individuals,  such  property 
has  never  been  regarded  as  real  estate  or  fixtures,  but  has,  in  all 
conditions  and  under  all  circumstances,  and  for  every  purpose, 
been  regarded  as  what  it  simply  is,  personal  property.  These  dis- 
tinctions are  so  plain  and  familiar,  that  every  class  of  men,  in  their 
business  affairs,  act  upon  and  conform  to  them.  If,  as  between 
individuals,  a  court  were  to  announce  a  contrary  rule,  it  would  star- 
tle every  class  of  men  as  new  and  unheard  of  in  our  system  of  juris- 
prudence. 

Our  legislature  has  failed  to  declare  such  property,  when  owned 
by  incorporated  bodies,  to  be  real  estate,  nor  does  any  rule  of  the 
common  law  make  such  a  distinction  in  its  favor.  The  common 
law,  as  it  heretofore  existed  and  now  exists,  with  all  of  its  expan- 
sive nature  and  its  adaptation  to  new  and  varying  circumstances 
of  a  community,  has  always  been  applied  to  bodies  politic  and  cor- 
porate, as  it  is  to  individuals.  All  their  exemptions  from  its  opera- 
tion are  found  in  their  charters  or  in  the  general  statutes  of  the 
State.  The  charter  of  this  company  grants  no  such  immunity  from 
its  operation,  and  no  general  law  of  the  State  has  given  such  bodies 
the  right  to  hold  personal  property  as  real  estate.  Nor  has  it  ever 
been  held  that  because  personal  property  is  convenient,  or  even 
necessary  to  the  enjoyment  of  real  estate,  that  it  should  for  that 
reason  be  held  and  treated  as  such.  Were  such  a  rule  adopted, 
it  would  convert  almost  every  description  of  chattels  into  realty. 
The  teams,  implements,  money  and  stock  of  the  agriculturist,  the 
capital  and  stock  of  the  mechanic,  the  miner,  the  manufacturer,  the 
merchant,  and  every  man's  household  furniture  and  property,  would 
fall  fully  within  the  reason  of  such  a  rule.  Such  has  never  been 
claimed  for  individuals,  and  no  reason  is  perceived  in  justice,  or 
upon  principle,  why  corporate  bodies  have  any  higher  or  greater 
claims  to  such  exemption.     They  are  unquestionably,  outside  of 

C.  P.  P.— 2 


18  Cases  on  Personal  Property 

their  charter  privileges,  entitled  to  the  benefits  of  the  rules  of  law, 
as  are  individuals,  but  to  nothing  more. 

It  is  only  since  railroad  mortgages  have  come  to  be  discussed, 
that  any  attempt  has  been  made  to  treat  what  are  undeniably  and 
palpably  personal  chattels  as  any  thing  else,  and  even  then,  when 
ingenuity  had  exhausted  itself  in  endeavors  to  show  that  fuel  and 
oflSce  furniture  and  the  like  were  real  estate,  or  in  equity  should 
be  treated  as  such,  for  the  benefit  of  mortgagees,  the  result  has 
proved  a  signal  failure.  In  the  absence  of  any  common  law  rule, 
or  statutory  enactment  making  these  articles  real  estate,  we  must 
hold,  whether  they  be  owned  by  a  railroad  company  or  an  indi- 
vidual, that  they  are  personal  property,  and  as  such,  are  subject 
to  all  of  its  incidents.  To  hold  otherwise  would  be  to  violate  ele- 
mentary principles,  recognized  and  acted  upon  wherever  the  com- 
mon law  obtains. 

*  *  *  But  that  fuel,  office  furniture,  stationery,  materials  for 
lights,  and  all  other  detached  property  of  that  character  is  person- 
alty, we  have  no  hesitation  in  determining.  *  *  *  To  hold 
otherwise  would,  it  seems  to  us,  involve  us  in  an  absurdity,  if  fol- 
lowed to  its  inevitable  consequences,  that  we  are  not  prepared  to 
adopt,  for  the  purpose  of  relieving  against  what  might  appear  to 
be  a  hardship  in  a  particular  case.  Whenever  the  law  is  warped 
for  such  a  purpose,  it  must  terminate  in  absurdity,  and  lead  to  the 
perpetration  of  great  injustice. 

The  decree  of  the  court  below  in  sustaining  the  demurrer  to,  and 
the  dismissal  of  complainant's  bill  is  affirmed. 

Decree  affirmed^ 

*  See  Childs '  Personal  Property,  §  3. 


v/ 


CHAPTER  II. 
CHATTELS   REAL. 

Leaseholds. 
BUHL  et  al.  v.  KENYON. 

11  Mich.  249,  83  Am.  Dec.  738.    1863. 
The  facts  are  stated  in  the  opinion. 

Campbell,  J. — The  plaintiffs  in  error  brought  ejectment  in  the 
court  below  as  execution  purchasers  of  the  interest  of  one  of  two 
tenants  for  years  of  certain  premises  in  Detroit,  which  were  sold 
as  real  estate. 

The  first  question  presented  is  whether  such  an  interest  is  real 
estate  within  the  meaning  of  the  statutes  relating  to  the  levy  and 
sale  of  lands  on  execution.  The  statute  provides  that,  where  not  in- 
consistent with  the  manifest  intent  of  the  Legislature,  the  word 
''land"  or  "lands,"  and  the  words  "real  estate  shall  be  construed 
to  include  lands,  tenements  and  real  estate,  and  all  rights  thereto, 
and  interest  therein:"  1  Comp.  L.,  §  2. 

By  section  3119  of  the  Compiled  Laws,  provision  is  made  for 
selling  "all  the  real  estate  of  a  debtor,  whether  in  possession,  rever- 
sion, or  remainder,  including  lands  fraudulently  conveyed  with 
intent  to  defeat,  delay  or  defraud  his  creditors,  and  the  equities 
and  rights  of  redemption  hereinafter  mentioned."  By  section 
4463,  in  the  general  chapter  on  judgments  and  executions,  it  is 
declared  that  "all  chattels,  real  or  personal,  and  all  other  goods 
liable  to  execution  by  the  common  law,  may  be  taken  and  sold 
thereon,"  except  as  is  otherwise  provided  by  law. 

As  a  leasehold  interest  of  this  kind  is  a  chattel  interest,  and  as 
it  is  in  this  last  section  classed  among  personal  property,  if  it  should 
be  held  included  in  the  class  of  real  estate  also,  some  confusion 
must  necessarily  arise.  But  as  we  have  heretofore  held  in  Trask 
V.  Green,  9  Mich.  358,  and  Maynard  v.  Hoskins,  9  Mich.  485,  the 

19 


20  Cases  on  ^Personal  Property 

statute  definition  of  real  estate  does  not  apply  in  its  full  breadth 
to  execution  sales,  because  incompatible,  when  thus  applied,  with 
the  general  intent  as  well  as  the  special  clauses  of  the  statutes 
governing  these.  We  think  the  ease  of  a  chattel  interest  is  not 
within  the  law  applicable  to  the  sale  of  lands  on  execution.  Such 
interests  have  always  been  sold  as  personalty  on  common  law  exe- 
cutions, and  it  would  require  plain  language  to  deduce  an  intent 
to  make  them  disposable  otherwise.  But  apart  from  the  fact  that 
they  were  so  liable  when  lands  were  not,  the  statutory  provisions 
governing  real  estate  sales  are  not  compatible  with  the  idea  that 
these  can  be  included  within  them.  There  are  multitudes  of  leases 
for  short  periods  where  a  sale  would  be  entirely  nullified  by  a  fif- 
teen months'  period  for  redemption.  The  whole  machinery  for 
land  sales  is  devised  with  a  view  to  reach  freehold  estates.  The 
lands  are  sold  in  parcels,  the  papers  are  filed  in  the  office  of  the 
register  of  deeds,  successive  sales  may  be  had  of  the  rights  to  redeem, 
and  various  other  incidents — all  inconsistent  with  any  such  inter- 
est as  is  here  in  question — show  that  the  property  sold  as  real 
estate  is  an  estate  of  a  more  permanent  character,  and  involving  a 
diilferent  kind  of  ownership. 

It  is  claimed,  however,  that  a  sale  which  will  pass  realty  must 
be  good  to  pass  personalty.  So  far  as  the  documentary  evidences 
of  sale  are  concerned,  this  is  true.  But  a  sale  on  execution  is 
designed  to  produce  the  best  price  which  can  be  obtained;  and  a 
sale  on  condition  that  no  title  shall  vest  for  fifteen  months  would, 
under  ordinary  circumstances,  render  a  lease  nearly  valueless,  be- 
sides involving  the  danger  of  forfeiture.  No  bidder  would  give  for 
the  shortened  term  the  value  of  the  full  term. 

"We,  therefore,  are  of  opinion  that  no  title  passed  to  the  plaintiffs 
by  their  execution  sale.  As  this  disposes  of  the  whole  controversy, 
we  make  no  reference  to  the  other  points  involved. 

The  judgment  below  is  affirmed,  with  costs. 

The  other  justices  concurred.^ 

1  See  Grouse  v.  Mitebell,  130  Mich.  347,  90  N.  W.  32;  Harvey  Coal  &  Coke 
Co.  V.  Dillon,  p.  1. 

See  Childs '  Personal  Property,  §  9. 


Chattels  Real  21 

KNAPP  et  al.  v.  JONES. 
143  in.  375,  32  N.  E.  382.     1892. 
The  facts  are  stated  in  the  opinion. 

;Mk.  Justice  Wilkin. — This  is  an  appeal  from  a  jud^nent  of  the 
appellate  court  for  the  second  district,  affirming  a  decree  of  the  cir- 
cuit court  of  LaSalle  county.  The  opinion  of  the  appellate  court, 
by  Upton,  J.,  is  as  follows : 

"This  was  a  bill  in  equity,  filed  in  the  circuit  court  of  LaSalle 
county,  to  foreclose  a  trust  deed  executed  by  George  L.  Blanchard 
and  his  wife  to  Almeron  K,  Knapp,  as  trustee,  dated  July  30,  1885, 
and  duly  recorded  in  LaSalle  county.  It  was  given  to  secure  an 
indebtedness  to  Noble  Jones  for  the  sum  of  $32,000.  The  property 
in  the  trust  deed  described  was  a  large  amount  of  real  estate  in 
LaSalle  county,  together  'with  the  grain  elevator  and  the  leased 
ground  upon  which  it  was  erected,  owned  by  the  grantor,  and  sit- 
uate upon  the  right  of  way  of  the  Illinois  Central  railwa}^,  at  Los- 
tant,  in  said  county. '  The  grain  elevator  in  the  trust  deed  described 
was  erected  upon  a  portion  of  the  right  of  way  of  said  railway 
company,  pursuant  to  a  lease  by  such  company  to  said  Blanchard, 
bearing  date  June  18,  1884"..  The  demise  was  for  a  period  of  one 
year,  and  required  the  lessee,  Blanchard,  to  erect  thereon  a  grain 
elevator  or  warehouse,  and  to  operate  and  conduct  the  same  in  the 
manner  provided  in  said  demise.  Blanchard  erected  the  grain 
elevator  upon  stone  foundations  set  in  the  ground  below  the  frost 
line,  and  placed  therein  all  requisite  machinery  and  facilities  for 
handling  grain,  which  were  intended  to  be  permanent,  as  much  so 
as  stone  and  iron  could  .be. 

"On  the  expiration  of  the  first  term  of  one  year  the  lease  was 
twice  thereafter  extended  in  writing,  the  last  extension  terminating 
July  1,  1888.  By  the  terms  of  the  lease  the  railway  company  had 
the  right  to  terminate  it  at  any  time,  upon  giving  sixty  days'  notice, 
and  the  lessee,  Blanchard,  had  the  right,  at  any  time  before  the 
termination  of  the  lease,  to  remove  all  buildings  by  him  erected  on 
the  leasehold  premises. 

"The  lessee,  Blanchard,  continued  to  use,  occupy  and  operate 
the  elevator  by  the  acquiescence,  if  not  the  actual  consent,  of  the 
railway  company,  lessor,  until  Augnst  23,  1887,  when  possession 
thereof  was  taken  by  the  creditors  of  Blanchard  upon  writs  of 
attachment,  which  subsequently  were  merged  into  judgment,  and 


22  Cases  on  Peesonal  Property 

the  leasehold  interest  of  Blanehard  was  thereunder  sold  to  Andrew 
J.  O'Connor,  who  subsequently  sold  and  conveyed  the  same  to 
appellant  Knapp.  Thereupon  this  bill  was  filed  for  the  purpose 
stated,  alleging  the  insolvency  of  Blanehard,  and  that  the  property 
in  the  trust  deed  described  was  inadequate  security,  etc.,  and  asking 
for  a  receiver,  etc.  *  *  *  The  cause  was  heard  in  the  court  be- 
low, and  a  decree  passed  for  appellee  Noble  Jones,  jtherein  finding 
that  appellant  Knapp 's  title  to  the  elevator,  derived  under  execution 
sales,  was  subject  to  the  lien  of  the  trust  deed,  and  directing  a  sale 
of  the  mortgaged  estate  by  the  master,  etc.  The  decree  directed  that 
one-half  of  the  costs  be  paid  by  Doyle,  the  constable,  and  the  balance 
by  Knapp.    From  that  decree  this  appeal  is  prosecuted. 

"The  principal  question  presented  upon  this  record,  as  stated 
by  appellant's  counsel,  is,  whether  the  elevator  in  question,  built  by 
Blanehard  upon  the  right  of  way  of  the  railroad  company  under  a 
lease  for  one  year  (and  subsequently  renewed  in  writing  for  two 
years),  with  a  provision  therein  that  the  lessor  may  terminate  such 
lease  at  any  time  upon  sixty  days'  notice,  and  that  the  lessee  may 
remove  the  buildings  by  him  erected  thereon,  at  any  time  before  the 
lease  expires,  is  personal  property,  within  the  meaning  of  chapter  95 
of  the  Revised  Statutes,  entitled  '  Chattel  Mortgages, '  so  that  at  the 
expiration  of  two  years  from  the  date  of  the  mortgage  upon  it, 
if  possession  is  not  taken  by  the  mortgagees,  it  becomes  subject  to 
sale  upon  execution,  free  from  the  mortgage  lien.  The  answer  to 
this  question  must  depend  upon  the  legal  classification  to  which 
property  of  the  kind  here  in  question  is  in  law  assigned, — whether 
chattel  real  or  chattel  personal.  That  the  leasehold  in  question, 
and  the  right  of  the  lessee  therein,  with  buildings  erected  thereon 
under  the  lease,  is  a  chattel,  none  will  deny.  If  this  elevator  and 
leasehold  of  Blanehard  is  to  be  classified  and  regarded  as  a  chattel 
real,  as  held  by  the  court  below,  then  there  was  no  error  in  the  trial 
court  holding  the  lien  of  the  trust  deed  paramount  to  the  right  of 
the  purchaser  thereof  at  the  execution  sale,  upon  subsequent  judg- 
ments against  the  lessee  Blanehard.  We  think  that  question  set- 
tled, at  least  in  this  state,  and  that  the  property  in  question  is  a 
'chattel  real,'  and  under  our  statute  is  classed  as  real  estate.  Bou- 
vier's  Law  Die.  title  'Chattels  Real;'  2  Blackstone's  Com.  387;  2 
Kent's  Com.  342;  1  Washburn  on  Real  Prop.  chap.  1,  sec.  17;  Grif- 
fin v.  Marine  Co.,  52  111.  130 ;  Conklin  v.  Foster,  57  id.  105 ;  Dob- 
schuetz  V.  Holliday,  82  id.  373 ;  Willoughby  v.  Lawrence,  116  id. 
11 ;  Kankakee  Coal  Co.  v.  Crane  Bros.  Manf .  Co.,  28  111.  App.  371. 

"Section  38,  chapter  30,  of  the  Revised  Statutes  of  1874,  pro- 


Chattels  Real  23 

vides  that  the  term  'real  estate,'  as  used  in  that  act,  shall  be  con- 
strued as  co-extensive  in  meaning  with  lands,  tenements  and 
hereditaments,  and  as  embracing  'chattels  real-;'  and  section  31  of 
the  same  chapter  provides,  that  deeds,  mortgages  and  other  instru- 
ments in  writing  relating  to  real  estate  shall  be  deemed,  from  the 
time  of  being  filed  for  record,  notice  to  subsequent  creditors  and 
purchasers,  although  not  acknowledged  or  proven  according  to  law. 
It  is  apparent,  therefore,  that  by  the  express  terms  of  the  statute  the 
elevator  and  leasehold  interest  of  Blanchard  were  'chattels  real,' 
and  the  deed  of  trust  was  valid  as  a  real  estate  mortgage,  and  the 
circuit  court  properly  so  held. 

"Perceiving  no  error  in  the  proceedings  in  the  trial  court,  or  in 
the  decree  as  rendered  therein,  the  decree  is  affirmed." 

We  have  examined  the  argument  of  counsel  for  appellants  in 
support  of  the  several  grounds  of  reversal  here  urged,  but  are  of 
the  opinion  that  the  case  was  properly  decided  by  the  circuit  court, 
and  that  sufficient  reasons  for  the  affirmance  of  that  decision  are 
given  in  the  foregoing  opinion. 

The  judgment  of  the  appellate  court  will  be  affirmed. 

Judgment  affirmed.^ 


Fixtures — Nature  of. 
WOLFORD  v.  BAXTER  et  al. 
33  Minn.  12,  53  Am.  Rep.  1,  21  N.  W.  744.    1884. 
The  facts  are  stated  in  the  opinion. 

Mitchell,  J.— In  February,  1881,  the  defendants  Mueller  and 
Siebold,  being  the  owners  of  certain  real  estate  upon  which  was  sit- 
uated a  brewery,  executed  a  mortgage  on  the  premises  to  the 
plaintiff.  In  February,  1883,  the  same  parties  executed  a  chattel 
mortgage  on  the  article  in  controversy  to  defendant  Baxter.  The 
plaintiff  claims  that  these  articles  were  fixtures  constituting  a  part 
of  the  realty,  and  as  such  were  covered  by  his  mortgage  on  the  land. 
On  the  other  hand,  defendant  Baxter  claims  that  they  wore  chattels. 
This  presents  the  only  point  in  the  case.  The  court  below  held 
that  the  air-pump  and  the  iron  pump,  which  were  fastened  to  the 

2  See  Childs '  Personal  Property,  §  9. 


24  Cases  on  Peesonal  Property 

building,  were  a  part  of  the  realty  and  covered  by  plaintiff's  mort- 
gage. Hence,  as  Baxter  does  not  object,  these  articles  need  not  be 
considered.  It  is  too  plain  to  require  argument  that  the  loose  cir- 
cular rotary  pump,  the  swimmers,  ice  tools,  pitching  machine, 
and  kettle  were  mere  chattels.  In  fact,  plaintiff  makes  no  point 
as  to  them.  This  reduces  the  controversy  to  three  classes  of  arti- 
cles, to-wit,  47  large  coops,  casks,  or  hogsheads  used  for  holding 
and  storing  beer,  12  fermenting  tubs,  and  1  copper  cooler.  In 
fact,  they  may  be  reduced  to  two  classes,  for  the  coops  and  ferment- 
ing tubs  stand  on  the  same  footing.  The  case  was  submitted  in  the 
court  below  upon  an  agreed  statement  of  facts,  which  we  will  leave 
to  be  set  out,  so  far  as  material,  in  the  statement  of  the  case. 

It  has  often  been  remarked  that  the  law  of  ''fixtures"  is  one  of 
the  most  uncertain  titles  in  the  entire  body  of  jurisprudence.  The 
lines  between  personal  property  and  fixtures  is  often  so  close  and 
so  nicely  drawn  that  no  precise  and  fixed  rule  can  be  laid  down  to 
control  all  cases.  It  is  difficult,  if  not  impossible,  to  give  a  defini- 
tion of  the  term  which  may  be  regarded  of  universal  application. 
Each  case  must  be  more  or  less  dependent  upon  its  own  peculiar 
facts.  Whether  a  thing  is  a  fixture  or  not  has  been  sometimes  said 
to  be  a  question  partly  of  law  and  partly  of  fact.  Almost  every 
court  and  every  text  writer  has  attempted  to  define  the  term.  None 
of  these  are  infallible  or  of  universal  application ;  but  they  are  of 
service  in  determining  whether  an  article  is  or  is  not,  in  a  given  case, 
a  fixture.  These  definitions  may  be  found  collected  in  almost  any 
law  dictionary  or  text-book  on  the  subject.  We  shall  neither  quote 
them  nor  attempt  to  give  a  definition  of  our  own,  but  simply  say 
that  they  all  agree  that  "fixtures,"  in  the  primary  meaning  of  the 
term  (and  distinguished  from  movable  or  tenants'  fixtures),  means 
chattels  annexed  to  the  realty  so  as  to  become  a  part  oiit,^ 

While  not  agreeing  as  to  the  necessity  for,  or  the  degree  of  impor- 
tance to  be  attached  to,  the  fact  of  actual  physical  annexation,  yet 
the  authorities  generally  unite  in  holding  that,  to  constitute  a 
fixture,  the  thing  must  be  of  an  accessory  character,  and  must  be 
in  some  way  in  actual  or  constructive  union  with  the  principal 
subject,  and  not  merely  brought  upon  it;  that  in  determining 
whether  the  article  is  personal  property,  or  has  become  a  part  of 
the  realty,  there  should  be  considered  the  fact  and  character  of 
annexation,  the  nature  of  the  thing  annexed,  the  adaptability  of 
the  thing  to  the  use  of  the  land,  the  intent  of  the  party  in  making 
the  annexation,  the  end  sought  by  annexation,  and  the  relation  of 
the  party  making  it  to  the  freehold.     These  other  tests  named, 


Chattels  Real  25 

while  liaving  an  important  bearing  upon  the  questions,  whether 
there  has  been  an  annexation,  and,  if  so,  its  effect,  do  not,  how- 
ever, do  away  with  the  necessity  of  annexation,  either  actual 
or  constructive,  to  constitute  a  fixture.  This  would  involve  a  con- 
tradiction of  terms,  and  wipe  out  the  fundamental  distinction  be- 
tween real  and  personal  property.  A  thing  may  be  said  to  be 
constructively  attached  where  it  has  been  annexed,  but  is  separated 
for  a  temporary  purpose,  as  in  the  case  of  millstones  removed  for  the 
purpose  of  being  dressed,  or  where  the  thing,  although  never  physi- 
cally fixed,  is  an  essential  part  of  something  which  is  fixed;  as  in 
the  case  of  keys  to  a  door,  or  the  loose  cover  of  a  kettle  set  in  brick- 
work. It  is,  perhaps,  somewhat  on  this  principle  that  the  per- 
manent and  stationary  machinery  in  a  structure  erected  especially 
for  a  particular  kind  of  manufacturing  has  been  held  fixtures, 
although  very  slightly  or  not  all  physically  connected  with  the 
building;  because,  without  it,  the  structure  would  not  be  complete 
for  the  purpose  for  which  it  was  erected.  Ponderous  articles, 
although  only  annexed  to  the  land  by  the  force  of  gravitation,  if 
placed  there  with  the  manifest  intent  that  they  shall  permanently 
remain,  may  be  fixtures. 

But,  while  physical  annexation  is  not  indispensable,  the  adjudi- 
cated cases  are  almost  universally  opposed  to  the  idea  of  mere  loose 
machinery  or  utensils,  even  where  it  is  the  main  agent  or  principal 
thing  in  prosecuting  the  business  to  which  the  realty  is  adapted, 
being  considered  a  part  of  the  freehold  for  any  purpose.  To  make 
it  a  fixture,  it  must  not  merely  be  essential  to  the  business  of  the 
structure,  but  it  must  be  attached  to  it  in  some  way,  or,  at  least, 
it  must  be  mechanically  fitted  so  as,  in  ordinary  understanding, 
to  constitute  a  part  of  the  structure  itself.  It  must  be  permanently 
attached  to,  or  the  component  part  of,  some  erection,  structure, 
or  machine  which  is  attached  to  the  freehold,  and  without  which 
the  erection,  structure,  or  machine  would  be  imperfect  or 
incomplete. 

On  applying  these  rules  and  tests  to  the  case  in  hand,  we  are  of 
opinion  that  the  coops  or  casks  and  tubs  in  controversy  have  none 
of  the  characteristics  of  fixtures.  They  were  not  actually  annexed 
to  the  freehold,  nor  were  they  of  a  nature  to  be  deemed  con- 
structively affixed  to  the  realty.  It  is  true  that  they  were  well 
adapted  to  and  necessary  for  carrying  on  the  brewing  business,  to 
wbich  the  premises  were  appropriated;  but  this  of  itself  is  quite 
an  immaterial  element  in  determining  the  nature  of  an  article. 
IVIany  articles  of  a  purely  personal  nature  are  useful  and  necessary 


26  Cases  on  Person.\l  Property 

in  carrying  on  a  particular  business  which  can  in  no  just  sense  be 
termed  fixtures.  These  articles  were  no  more  essential  to  the  brew- 
ing business  than  were  the  ice  tools,  pitching-machine,  or  ordinary- 
beer  kegs,  or  are  farm  machinery  for  the  business  of  husbandry. 
It  is  also  true  that  it  is  stipulated  that  these  casks  and  tubs  are  con- 
structed for  the  purpose  of  being  put  into  and  used  in  this  brewery, 
and  were  placed  there  with  intent  that  they  should  remain  there 
for  permanent  use,  and  that  the  vaults  were  excavated  for  the 
special  purpose  of  storing  therein  such  hogsheads,  and  that  the 
ice-house  was  constructed  for  the  special  purpose  of  placing  therein 
fermenting  tubs,  in  the  first  story,  and  casks  in  the  second ;  but  it 
does  not  appear  that  the  vaults  were  excavated  or  the  ice-house 
built  in  any  special  shape  to  suit  these  particular  casks  or  tubs, 
or  that  the  casks  or  tubs  were  constructed  to  fit  into  any  particular 
place  in  the  vaults  or  ice-house.  They  were  adapted  to  receive 
any  other  casks  or  tubs  as  well  as  these,  and  any  other  such  casks 
or  tubs  would  have  been  just  as  well  adapted  to  be  stored  there 
as  these. 

It  is  expressly  stipulated  that  these  tubs  and  hogsheads  were  of 
the  same  description  as  those  in  general  use  in  breweries,  and  that 
they  might  be  sold  to  other  brewers  for  the  purposes  for  which 
they  were  constructed.  They  were  readily  removed  from  the  vaults 
and  ice-houses,  and  in  fact  were  removed  once  a  year  or  oftener  out- 
side, for  the  purpose  of  being  pitched  or  repaired.  AVe  can  see 
no  particular  difference  between  them  and  ordinary  beer  kegs, 
except  that  they  were  used  exclusively  inside  of  the  vaults  or  ice- 
houses, and  being  larger  were  somewhat  more  difficult  to  move. 
The  intent  that  they  should  remain  in  this  brewery  for  permanent 
use  there  is  unimportant.  Intent  alone  will  not  convert  a  chattel 
into  a  fixture.  A  farmer  may  take  a  plow,  or  any  other  farm 
,  implement,  upon  his  farm  with  intent  to  keep  and  use  it  there 
until  it  wears  out,  but  this  will  not  make  it  real  estate.  Moreover, 
it  will  be  noted  that  it  is  not  stipulated  that  these  articles  were 
placed  in  the  brewery  with  intent  to  make  them  a  permanent  acces- 
sion to  the  freehold,  but  merely  that  they  should  remain  there  for 
permanent  use.  "What  has  been  said  as  to  the  hogsheads  and  tubs 
will  in  the  main  apply  to  the  copper  cooler.  It  was  a  loose,  movable 
utensil,  the  same  as  in  common  use  in  breweries.  The  only  ground 
for  a  distinction  between  this  and  the  other  articles  is  that,  when 
in  use,  it  was  connected  by  a  hose  to  a  stationary  water-tank,  in 
order  to  permit  water  to  pass  through  it.  When  not  in  use  the  hose 
was  disconnected  and  the  cooler  was  laid  away.     The  object  and 


Chattels  Real.  27 

purpose  of  this  temporary  annexation  was  not  to  make  the  cooler 
a  permanent  accessory  to  the  building,  but  for  the  purpose  of  using 
the  article  as  a  chattel.  It  may  be,  on  the  facts,  a  little  closer  ease 
than  that  of  the  hogsheads  and  tubs,  but  the  court  below  having 
found  it  to  be  personal  property,  we  see  no  occasion  to  disturb  his 

decision. 

Order  affirmed.^ 


CRIPPEN  V.  MORRISON  et  al. 
13  Mich.  23.    1864. 
The  facts  are  stated  in  the  opinion. 

Campbell,  J. — Defendants  in  error  brought  an  action  of  trover 
for  the  conversion  of  a  steam  engine  and  its  appurtenances,  which 
they  claimed  under  the  following  circumstances :  Francis  A.  Hall 
mortgaged  certain  lands  in  Batavia,  Branch  county,  amounting  to 
572  acres,  to  one  Hiscock,  October  22d,  1856,  for  $4,000 ;  and  this 
money  was  borrowed  under  a  verbal  agreement  that  Hall  should 
erect  a  saw-mill  on  the  premises.  On  the  same  day.  Hall  contracted 
with  defendants  in  error  to  build  and  put  up  the  engine  in  ques- 
tion, he  agreeing  to  put  up  a  suitable  mill  frame  and  engine  house 
to  receive  it,  and  upon  its  acceptance  to  execute  back  a  chattel 
mortgage  on  the  engine,  and  a  mortgage  upon  the  land,  which  was 
already  subject  to  the  Hiscock  mortgage.  It  was  expressly  agreed 
that  the  engine  and  appurtenances  should  continue  to  be  the  prop- 
erty of  defendants  in  error,  until  they  should  receive  the  mort- 
gage securities  on  the  chattels,  and  on  the  real  estate.  On  April 
15th,  1857,  these  securities  were  delivered,  the  machinery  havirig 
been  accepted.  They  were  properly  filed  and  recorded,  and  kept 
alive  till  suit.  October  10,  1857,  Hiscock  commenced  a  foreclosure 
suit,  making  defendants  in  error  parties  with  the  other  persons 
interested  in  the  land.  A  decree  was  obtained  December  31,  1858, 
for  the  amount  of  $820,  then  due;  and  June  25,  1860,  a  further 
decree  was  obtained  for  installments  sul)sequent  to  the  first  decree. 
Before  the  first  decree,  and  in  October,  1857,  about  two  weeks  after 
the  foreclosure  suit  was  commenced,  Hiscock  assigned  $3,860.44  of 
the  mortgage  money  to  one  AVilliam  P.  Morley,  who  was  not  a  party 

3  See  Childs'  Personal  Property,  §  10. 


28  Cases  on  Peksonai»  Property 

to  the  bill.  Au^st  24, 1858,  and  before  any  decree,  Morley  assigned 
to  Crippen  (the  defendant  below,  and  plaintiff  in  error),  informing 
Crippen  that  he  had  no  interest  in  the  machinery.  December  31, 
1859,  Hiscock  assigned  the  remaining  interest  in  the  mortgage  to 
Crippen.  Prior  to  July  26,  1858,  and  before  Crippen  obtained  any 
interest  in  the  mortgage,  the  machinery  was  taken  down,  and  stored 
in  the  mill  building.  One  Laman  then  became  owner  of  the  prop- 
erty and  machinery  mortgaged,  and,  in  Crippen 's  presence,  prom- 
ised to  pay  the  Hiscock  mortgage,  and  the  claim  of  defendants 
in  error.  Laman  subsequently  put  up  the  machinery  again  in  the 
mill.  October  4,  1860,  Crippen  bid  in  the  lands  on  the  foreclosure 
sale,  and  the  sale  was  confirmed  October  30th.  He  took  possession 
of  everything,  and  subsequently  took  down  the  machinery,  using 
a  part  in  another  mill,  and  storing  the  rest.  In  November,  1860, 
a  demand  was  made  for  the  machinery  by  defendants  in  error,  at 
the  mill.  In  February,  1861,  a  further  demand  was  made  at  Crip- 
pen's  barn,  where  some  of  the  property  was  then  stored.  He  made 
no  reply  whatever  to  either  demand.  The  circuit  court  gave  judg- 
ment against  Crippen  for  a  conversion. 

The  rules  which  apply  to  personal  property  after  it  has  been 
put  to  any  use  in  connection  with  land,  are  not  uniformly  agreed 
on,  and  any  attempt  to  harmonize  all  the  authorities  would  be  idle. 
We  must,  in  all  these  cases,  adept  such  conclusions  as  appear  most 
in  accordance  with  the  general  doctrines  of  the  law. 

At  the  common  law,  personal  property,  as  a  general  rule,  never 
lost  its  identity  in  realty,  unless  so  closely  incorporated  with  it 
that  it  could  not  be  separated  without  injuiy  to  the  freehold.  And 
even  under  the  peculiar  preference  given  by  the  English  law  to 
trade  over  agricultural  improvements,  buildings  erected  for  farm- 
ing uses,  although  resting  upon  foundations  of  masonry,  were  not 
considered  as  real  estate  as  against  the  tenant,  if  capable  of  being 
removed  without  injury.  In  Wansbrough  v.  Maton,  4  Ad.  &  El., 
884,  it  was  held  expressly  that  a  bam  resting  upon  a  masonry 
foundation,  and  capable  of  removal,  was  no  part  of  the  freehold, 
and  was  therefore,  in  all  respects,  the  chattel  of  the  tenant  who 
built  it.     *     *     * 

In  regard  to  erections  made  by  tenants  for  purposes  of  trade  or 
manufacture,  an  exception  was  early  raised  in  their  favor,  allow- 
ing them  to  remove  erections  made  for  those  purposes,  although 
actually  annexed  to  the  freehold  in  a  substantial  way.  But,  inas- 
much as  these  erections  had,  during  the  tenancy,  become  actual 
parts  of  the  freehold,  it  was  usually  necessary  for  the  tenant  to 


Chattels  Real  29 

remove  them  before  restoring  the  possession  to  the  landlord;  as 
he  could  not  afterwards  enter  upon  and  remove  that  which  had 
become  part  of  the  land,  although,  during  his  possession,  he  was 
not  liable  for  such  w^aste  as  would  arise  by  such  removal  of  what 
he  had  himself  erected.  If,  however,  the  estate  of  the  tenant  was 
indeterminate,  the  property  in  the  improvements  was  not  divested 
by  the  lapse  of  the  tenancy,  and  they  might  be  removed  afterwards : 
Bennett  v.  Nichols,  12  I\Iich.  R.,  22 ;  Ombony  v.  Jones,  19  N.  Y., 
234.     *     *     * 

There  can  be  no  dispute  but  that,  in  this  country  and  in  England, 
many  cases  have  been  decided  (and  we  are  not  disposed  to  question 
their  propriety),  which  hold  that  personal  chattels,  although  sever- 
able without  material  injury  to  the  freehold,  may  yet  pass  as  realty 
if  apparently  suitable  and  actually  designed  to  be  permanently 
attached  to  the  land.  These  cases  are,  many  of  them,  founded  upon 
the  change  of  business,  whereby  motive  power,  which  formerly  de- 
pended on  the  freehold  itself,  by  the  improvement  of  water  privi- 
leges, has  now  become  dependent  on  steam  engines,  which  are  per- 
sonal chattels.  The  doctrine  that  held  all  the  machinery  of  a  water 
mill  to  be  fixtures  was  based  upon  the  idea  that  it  was  all  designed 
to  obtain  the  beneficial  use  of  the  realty.  This  principle  cannot 
strictly  apply  to  steam  machinery,  where  everything  is  really  de- 
pendent on  that  which  is  in  its  nature  personal ;  and  it  is  not  sur- 
prising that  in  seeking  to  apply  old  rules  to  new  circumstances, 
courts  should  not  have  always  been  consistent.  Mills  and  factories 
are  generally  set  up  as  entireties  for  the  purpose  of  grinding,  saw- 
ing and  manufacturing;  and  yet,  according  to  the  current  of 
modern  decisions,  the  ultimate  purpose  is  disregarded;  and  while 
the  steam  engine,  which  is  but  an  incident  to  the  main  purpose, 
and  which  is  often  removed  and  replaced  without  disturbing  the 
rest,  is  presumed  to  be  realty,  the  looms  and  other  permanent 
machinery,  for  the  accommodation  of  which  the  building  was 
«hiefly  erected,  are  at  the  same  time  regarded  as  mere  chattels. 
Such  an  arbitrary  rule  is  unreasonable,  and  contrary  to  the  general 
usage  of  business,  and,  if  allowed  to  prevail  over  the  actual  agree- 
ments of  parties,  would  work  great  injustice. 

But  we  think  that,  with  every  few  exceptions,  the  authorities 
agree  that  there  is  no  inflexible  rule  on  the  .subject,  and  that  every 
presumption  which  might  arise  in  the  absence  of  an  agreement 
may  be  defeated  by  the  agreement.  In  Wood  v.  Hewctt,  8  Q.  B., 
913,  the  whole  doctrine  is  put  upon  an  intelligible  and  sensible 
basis.     In  that  case,  a  fender,  or  water  gate,  was  built  in  masonry 


30  Cases  on  PERSONiU.  Property 

upon  the  lands  of  a  party,  who  removed  it,  and  who  was  sued  in 
trespass  by  the  proprietor  of  a  mill  upon  other  lands,  on  the  ground 
that  it  was  his  property.  The  defendant  claimed  that  it  was  a 
part  of  his  freehold.  Lord  Denman  said:  "The  question  is 
whether,  because  the  fender  in  this  case  had  been  placed  on  the 
defendant's  soil,  it  became  his  property  as  a  necessary  consequence 
of  its  position.  I  am  of  opinion  that  such  a  consequence  never 
follows  of  necessity  where  the  chattel  is  separable.     *     *     * 

"The  decision  in  Mant  v.  Collins  is  so  far  an  authority  in  point 
of  law  as  it  shows  that,  in  a  case  of  this  kind,  it  is  always  open 
to  inquiry  how  the  article  came  to  be  in  the  place  in  which  it  is 
found,  and  what  the  parties  intended  as  to  its  use;  and  the  re- 
spective rights  may  be  determined  by  the  evidence  on  these  points." 
*  *  *  "The  agreement  from  the  nature  of  the  thing  decides 
nothing."  Patterson  J.  said:  "The  question  does  not  turn  upon 
any  general  doctrine  of  law,  but  upon  the  evidence  in  the  case.  The 
general  rule  respecting  annexations  to  the  freehold  is  always  open 
to  variation  by  agreement  of  parties ;  and  if  a  chattel  of  this  kind 
is  put  up  so  that  the  owner  can  remove  it,  I  do  not  see  why  it 
should  necessarily  become  part  of  the  freehold,  or  why  it  should 
not  be  removable  when  the  owner  thinks  fit,  if  it  appear  to  have 
been  so  agreed."  The  case  of  Mant  v.  Collins  decided  that  a  pew 
door  was  not  of  necessity  a  part  of  the  inheritance.     *     *     *    ^ 

In  Mott  V.  Palmer,  1  N.  Y.  Rep.,  564,  it  was  held  that  rails  built 
into  a  fence,  with  the  understanding  that  they  might  be  removed, 
did  not  pass  to  the  vendee,  although  purchasing  and  taking  pos- 
session without  notice.  And  many  cases  are  cited  to  show  that 
ownership  of  the  soil  by  one  is  not  incompatible  with  owneship 
of  any  erection  upon  it  by  another.  In  this  case,  also,  the  owner 
of  the  rails  was  allowed  to  recover  against  the  purchaser  of  the 
land  for  converting  them  the  year  after  he  purchased.  There  seems 
to  be  no  limitation  concerning  the  kind  of  severable  chattel  which 
may  be  owned  by  one  person  upon  another's  laud.     *     *     * 

The  case  of  Ford  v.  Cobb,  20  N.  Y.,  344,  in  some  of  its  principal 
features,  resembles  the  case  now  before  us.  Salt  kettles,  and  grates, 
and  arch  fronts  were  purchased  to  be  set  up  in  brick  arches,  and 
a  chattel  mortgage  was  given  back  reciting  these  facts,  and  was 
duly  recorded.  The  land  was  then  sold  to  a  purchaser  without 
notice.  It  was  held  that  the  kettles  never  became  realty,  and  that 
the  chattel  mortgage  title  must  prevail.  The  case  of  Godard  v. 
Gould,  14  Barb.  S.  C.  R.,  662,  was  entirely  similar  in  principle. 

There  are  cases  in  some  states,  particularly  in  Massachusetts, 


Chattels  Heal  31 

which  are  not  consistent  with  these  decisions.  But  when  we  con- 
sider the  original  common  law  doctrine,  requiring  an  actual  incor- 
poration into  the  freehold,  and  the  peculiar  rules  of  policy  which 
have  since  allowed  articles  which  are  personal  in  their  nature  to 
be  annexed  by  construction,  we  think  that  rule  is  the  safest  which 
allows  personalty  to  continue  as  such  until  changed  by  design  into 
realty. 

So  long  as  a  chattel  may  be  removed  as  such  from  real  estate, 
and  is  in  a  condition  to  be  removed  without  material  injury  to  the 
freehold,  it  is  difficult  to  see  by  what  process  the  title  to  it  can  be 
divested  from  its  original  owner,  without  some  sale  or  transfer,  or 
some  acquiescence  in  the  sale  or  transfer  made  by  another,  under 
circumstances  going  to  create  an  estoppel.  The  cases  in  New  York 
hold  distinctly  that  the  chattel  does  not  cease  to  be  a  chattel,  and 
does  not,  therefore,  pass  to  a  bona  fide  purchaser  of  the  land.  This 
is  in  accordance  with  the  usual  rule  concerning  separate  chattels, 
a  bona  fide  purchaser  having  no  claim  against  the  true  owner. 
Wliether  this  rule  should  be  universal  is  not  material  in  the  case 
before  us,  for  there  has  been  no  ho7ia  fide  purchase,  and  therefore 
it  is  not  necessary  to  express  an  opinion  on  it.  The  machinery 
was  not  put  up  when  the  original  mortgage  was  given,  and  Crippen, 
when  he  first  obtained  his  assignment  from  ]\Iorley,  was  informed 
there  was  no  claim  on  the  machinery.  He  could  not  divest  himself 
of  the  force  of  this  notice. 

It  is  claimed,  however,  that,  by  the  rules  of  law,  fixtures  made 
after  ^a  mortgage  belong  to  the  mortgagee,  and  that  the  mortgagor 
has  not  such  an  estate  as  will  authorize  any  one  to  make  an  agree- 
ment with  him  touching  the  use  of  the  land.  Under  the  English 
rule,  which  gives  the  mortgagee  an  immediate  right  of  possession, 
the  mortgagor  cannot  give  others  a  right  he  does  not  possess  him- 
self; and  should  he  erect  improvements  which  could  not  be  severed 
without  injury,  they  must  undoubtedly  continue  on  the  premises. 
Improvements  made  by  him  would  be  presumed  to  be  made  for 
the  benefit  of  the  inheritance.  But  we  think  those  cases  which 
make  this  presumption  absolute,  not  only  as  against  him,  but  as 
against  other  owners  of  chattels  placing  them  on  the  premises,  go 
beyond  reason,  and  divest  property  without  any  necessity  or  pro- 
priety, when  its  nature  has  not,  in  fact,  been  changed.     *     *     * 

The  mortgagor,  therefore,  until  actual  foreclosure,  is  in  posses- 
sion by  right,  and  not  by  sufferance,  and  may  make  such  arrange- 
ments for  the  use  of  the  property  as  any  other  person  could  during 
his  term.     The  machinery  never  became  any  part  of  the  realty; 


32  Cases  on  Personal  Property 

Crippen  was  not  misled  by  appearance  and  had  no  right  to  dis- 
pose of  it.     *    *     * 

Judgment  should  be  affirmed,  with  costs. 

Martin,  Ch.  J. — Whatever  may  be  the  rule  of  the  common  law, 
respecting  fixtures,  in  the  absence  of  any  agreement  of  parties,  it 
is  well  settled  at  this  day  that  the  contract  of  parties  will  fix  the 
character  and  control  the  disposition  of  personal  property,  which, 
in  the  absence  of  a  contract,  would  be  held  to  be  a  fixture ;  in  other 
words,  the  parties  interested  may  control  the  legal  effect  of  any 
transaction  respecting  such  property  by  express  agreement.  Such 
was  done  in  the  case  before  us.  The  property  which  is  the  subject 
of  this  litigation  was  only  erected  upon  the  premises  upon  the 
agreement  that  it  should  be  subject  to  a  chattel  mortgage  for  its 
purchase  price.  By  this  the  parties  kept  it  separate  from  the  realty, 
and  it  never  became  part  of  it.  *  *  *  Crippen  certainly  never 
purchased  it,  for  he  bought  with  the  full  knowledge  of  the  property, 
and  the  claims  of  the  defendants  in  error  to  it.  *  *  *  His  pur- 
chase at  the  sale  barely  confirmed  his  title  to  the  land,  as  he  ac- 
quired it  hy  purchase  of  the  decree — nothing  more. 

The  Judgment  of  the  court  below  is  affirmed,  with  costs.* 

Christianct,  J.,  did  not  sit  in  this  case. 


Intention.  -^ 

STATE  SECURITY  BANK  v.  HOSKINS  et  al. 

130  Iowa  339,  106  N.  W.  764,  8  L.  R.  A.  N.  S,  376,    1906. 

[This  was  an  action  in  which  the  defendants  appealed  from  a 
decree  enjoining  the  removal  of  a  gasoline  engine  from  a  farm 
owned  by  the  plaintiff,  which  engine  the  defendants  claimed  under 
bill  of  sale.] 

^uHlier  facts  appear  in  the  opinion. 

McClain,  C.  J. — The  question  elaborately  argued,  and  upon 
which  extensive  citations  of  authorities  are  made  by  counsel  are: 
First,  whether  the  gasoline  engine  in  question,  which  was  erected 
by  plaintiff 's  remote  grantor  on  the  farm  to  which  plaintiff  acquired 
title  by  warranty  deed  covering  "all  the  appurtenances,"  placed 

4  See  Childs'  Personal  Property,  §10. 


Chattels  Real  ^ 

on  a  solid  stone  foundation,  inclosed  in  a  permanent  building  also 
resting  on  a  stone  foundation,  and  intended  for  use,  and  used  to 
propel  machinery  for  grinding  feed  for  stock,  was  a  part  of  the 
realty  passing  to  plaintiff  by  the  deed,  as  against  the  defendants, 
who  by  bill  of  sale,  acquired  from  the  same  grantor  "the  following 
described  property:  Live  stock,  plows,  etc.  (specifically  described), 
and  all  other  machinery  and  tools  and  farm  wagons  on  said  prem- 
ises." And,  second,  whether,  conceding  the  gasoline  engine  in 
qoiestion  to  be  a  part  of  the  realty  as  a  matter  of  law  in  the  absence 
of  any  agreement  or  understanding  that  it  was  to  become  personal 
property  and  pass  to  the  defendants  under  the  bill  of  sale,  there 
is  any  evidence  to  show  an  agreement  or  understanding  binding 
on  the  plaintiff  that  said  engine  should  be  personal  property.  Courts 
have  found  difficulty  in  many  cases  in  determining  whether  chattels 
have  been  so  annexed,  actually  or  constructively,  to  the  realty  as 
to  pass  with  it  by  a  conveyance,  but  as  to  this  engine,  placed  by  the 
original  grantor,  Anderson,  upon  his  stock  farm  for  permanent  use, 
we  think  there  can  be  no  difficulty  whatever  in  determining  its 
character.  In  holding  an  engine  to  be  part  of  the  realty  this  court 
has  laid  particular  emphasis  on  the  intention  of  the  person  making 
the  annexation,  and  has  said  that  the  character  of  the  physical  at- 
tachment, whether  slight,  or  otherwise,  and  the  use  are  mainly  im- 
portant in  determining  the  intention  of  the  party  making  the  an- 
nexation. Ottumwa  Woolen  Mill  Co.  v.  Hawley,  44  Iowa  57,  24 
Am.  Rep.  719.  And  in  holding  that  platform  scales  placed  on 
a  foundation  were  part  of  the  realty,  we  have  said  that  the  inten- 
tion which  controls,  is  not  a  secret  purpose  of  the  owner,  but  that 
which  should  be  implied  from  his  acts,  and  is  ordinarily  to  l)e 
inferred  from  the  nature  of  the  article,  the  manner  and  object  of 
its  use,  and  the  mode  of  its  annexation,  Thompson  v.  Smith,  111 
Iowa,  718,  83  N.  W.  789,  50  L.  R.  A.  780,  82  Am.  St.  Rep.  541. 
Applying  the  same  tests,  we  have  held  that  a  furnace  standing  on 
a  brick  foundation  in  the  cellar  of  a  house,  and  connected  willi 
pipes  and  flues  for  the  purpose  of  furnishing  heat,  and  a  boiler 
attached  to  pipes  connecting  it  with  the  kitchen  range,  and  in- 
tended to  supply  hot  water  to  the  rooms  in  the  house,  were'  part 
of  the  house,  although  they  might  have  been  removed  without  injury 
to  it  by  severing  their  connections.  West  v.  Farmers'  Mut.  Ins. 
Co.,  117  Iowa,  147,  90  N.  W.  523. 

This  engine  could  have  been  taken  off  its  stone  and  cement  foun- 
dation by  un.screwing  the  burrs  of  the  bolts  by  which  it  was  fast- 
ened to  the  foundation,  and  might  have  been  taken  out  of  the 
C.  P.  P.— 3 


34  Cases  on  Personal  Property 

building  constructed  around  it  by  cutting  a  hole  in  the  wooden 
walls,  but  to  so  remove  it  would  clearly  have  been  contrary  to  the 
intention  with  which  it  was  fastened  to  the  foundation  and  inclosed 
in  the  building.  The  mere  fact  that  such  a  piece  of  machinery  can 
be  removed  from  the  support  on  which  it  rests  even  by  its  own 
weight  alone  does  not,  in  itself,  negative  the  intention  to  annex  it 
permanently  to  the  realty.  Detroit  United  Railway  Co.  v.  Board  of 
State  Tax.  Com.  (Mich.)  98  N.  "W.  997.  Knickerbocker  Trust  Co. 
V.  Penn  Cordage  Co.  (N.  J.  Err.  &  App.),  58  Atl.  409.  We  are  in- 
clined to  give  greater  weight  to  the  intention  of  the  party  indicated 
by  his  acts  in  attaching  chattels  to  the  realty  and  using  them  in 
connection  therewith,  than  to  the  manner  of  physical  annexation. 
As  is  said  in  Gibson,  C.  J.,  in  Voorhis  v.  Freeman,  2  Watts  &  S. 
116,  37  Am.  Dec.  490;  "The  simple  criterion  of  physical  attach- 
ment is  so  limited  in  its  range  and  so  productive  of  contradiction, 
even  in  regard  to  fixtures  in  dwelling.s  to  which  it  was  adapted 
before  England  had  become  a  manufacturing  country,  that  it  will 
answer  for  nothing  else."  And  in  support  of  the  more  liberal  rule, 
see,  also,  Farrar  v.  Stackpole,  6  Me.  154,  19  Am.  Dec.  201 ;  Despatch 
Line  v.  Bellamy  Mfg.  Co.,  12  N.  H.  205,  37  Am.  Dec.  203 ;  Cavis  v. 
Beckford,  62  N.  H.  229,  13  Am.  St.  Rep.  554 ;  Bullard  v.  Hopkins, 
(Iowa)  105  N.  W.  197;  19  Cyc.  1045.  We  have  not  the  slightest 
doubt  that  aside  from  any  special  agreement  or  understanding  of 
which  plaintiff  had  notice,  this  gasoline  engine  became  the  property 
of  plaintiff  under  the  omnypyar\op  tn  it,.  The  cases  relied  on  for 
appellant  relate  to  trade  fixtures  or  chattels  annexed  by  one  person 

to  the  land  of  another,  as  to  which  other  considerations  control, 

*     *     * 

The  decree  of  the  trial  court  is  affirmed.^ 


Agreement. 

TYSON  et  al.  v.  POST  et  al. 

108  N.  r.  217,  15  N.  E.  316,  2  Am.  St.  Rep.  409.     1888. 

Action  to  foreclose  purchase  money  mortgages. 

[The  premises  in  question  consisted  of  land  on  which  were  situated 
the  plant  and  machinery  of  two  abandoned  marine  "railways.     The 
5  See  Childs '  Personal  Property,  §  12. 


Chattels  Real  35 

defendant,  Post,  claimed  title  to  the  machinery  because  of  an  oral 
agreement  between  all  parties.  Judgment  for  defendants  and  plain- 
tiffs appealed.] 

Further  facts  are  stated  in  the  opinion. 

Andrews,  J. — The  question  whether  the  defendant  Post  acquired 
title  to  the  plant  and  machinery  of  the  marine  railways  embraced 
in  the  plaintiffs'  mortgage,  as  security  for  the  $6,200  paid  by  him 
to  the  plaintiffs  at  the  request  of  Carroll,  to  enable  the  latter  to 
complete  the  first  payment  on  the  contract  with  the  plaintiffs  for 
the  purchase  of  the  land,  does  not  depend  upon  the  character  of 
of  the  property,  whether  real  or  personal,  when  placed  upon  the 
mortgaged  premises.  There  can  be  little  doubt,  however,  that  the 
machinery,  shafting,  rollers  and  other  articles  became  as  between 
vendor  and  vendee,  and  mortgagor  and  mortgagee,  fixtures  and  a 
part  of  the  realty.  (McRae  v.  Central  Nat.  B'k.  66  N.  Y.  489.) 
But,  as  by  agreement,  for  the  purpose  of  protecting  the  rights  of 
vendors  of  personalty,  or  of  creditors,  chattels  may  retain  their 
character  as  chattels,  notwithsanding  their  annexation  to  the  land 
in  such  a  way  as  in  the  absence  of  an  agreement  would  constitute 
them  fixtures  (Ford  v.  Cobb,  20  N.  Y.  344;  Sisson  v.  Hibbard,  75 
id.  542),  so,  also,  it  would  seem  to  follow,  that  by  convention,  the 
owner  of  land  may  reimpress  the  character  of  personalty  on  chat- 
tels, which,  by  annexation  to  the  land,  have  become  fixtures  accord- 
ing to  the  ordinary  rule  of  law,  provided  only  that  they  have  not 
been  so  incorporated  as  to  lose  their  identity  and  the  reconversion 
does  not  interfere  with  the  rights  of  creditors  or  third  persons. 
The  plant  and  machinery  in  question  were  personal  property  when 
placed  on  the  land,  and  the  only  issue  presented  is,  did  the  plain- 
tiffs agree  with  Post  that  he  might  take  the  title  to  the  plant  and 
machinery  for  his  security,  free  of  the  mortgage,  and  remove  them 
at  any  time  from  the  mortgaged  premises,  thereby  reimpressing 
the  property  with  the  character  of  personalty.  In  determining  this 
question  it  does  not  seem  to  us  to  be  very  material  to  inquire  whether 
the  deed  from  the  plaintiffs  to  Cooney  (the  nominee  of  Carroll), 
and  the  mortgage  back  embraced,  or  was  intended  to  embrace,  the 
plant  and  machinery.  Post  was  not  a  party  to  the  instruments  and 
is  not  concluded  by  them.  The  rights  of  Post  depend  wholly  upon 
his  agreement  with  the  plaintiffs,  and  if  they  received  his  money 
upon  the  agreement  that  he  should  have  the  plant  and  machinery, 


36  Cases  on  PERSONiUj  Property 

with  the  right  to  remove  them  without  restriction  as  to  time,  the 
agreement  was  valid  although  by  parol,  and  even  if  it  contradicts 
the  legal  import  of  the  mortgage,  it  being  an  agreement  between 
different  parties,  it  is  not  within  the  rule  which  forbids  parol  evi- 
dence to  contradict  a  written  instrument.  The  only  point  of  dis- 
agreement between  the  parties  relates  to  a  restriction  alleged  to 
have  been  placed  on  the  time  within  which  Post  should  exercise  the 
right  of  removal.  The  plaintiffs  concede  that  the  right  of  removal 
was  given  to  Post,  but  they  allege  that  it  was  subject  to  the  limita- 
tion that  the  right  should  be  exercised  before  any  proceedings  were 
taken  to  foreclose  the  mortgage.  The  defendant  on  the  other  hand 
claims  that  the  right  was  unrestricted  and  absolute.  The  paper 
executed  by  the  plaintiffs  on  the  closing  of  the  transaction  contains 
the  restriction  claimed  by  the  plaintiffs.  But  we  think  the  evidence 
sustains  the  contention  of  the  defendant,  that  the  paper  was  not 
delivered  to  or  accepted  by  him,  and  that  he  had  no  knowledge  of 
its  contents.  The  question  of  fact,  therefore,  depends  upon  the 
other  evidence  bearing  upon  the  actual  agreement.  It  would  not 
be  useful  to  state  the  evidence  in  detail.  It  is  sufficient  to  say  that 
after  a  careful  examination  of  the  testimony,  we  have  reached  the 
conclusion  that  the  claim  of  the  defendant  is  most  consistent  with 
the  conceded  facts  and  is  supported  by  a  preponderance  of  evidence. 

The  orders  of  the  General  Term  should,  therefore,  be  affirmed, 
and  judgments  absolute  directed  in  accordance  with  the  stipulations. 

All  concur. 

Judgments  accordingly.^ 


Annexation. 

V  BRIGHAM  V.  OVERSTREET^X 

128  Ga.  447,  57  8.  E.  484, 10  L.  R.  A.  (N.  S.)  452.    1907. 

The  facts  as  stated  by  the  court  are  as  follows : 

Fish,  C.  J. — E.  K.  Overstreet  brought  an  equitable  action  against 
Charles  Brigham  and  C.  F;"ifeeliley.  The  substance  of  the  petition 
was  as  follows :    In  August,  1905,  Brigham  sold  and  conveyed,  by 

6  See  ChJlds'  Personal  Property,  §§12,  141. 


Chattels  Real.  37 

warranty  deed,  certain  described  lands  to  the  Southern  States  Phos- 
phate &  Fertilizer  Company,  which  company  subsequently  rented 
the  land  to  Brigham  for  the  year  1906.  In  April,  1906,  the  com- 
pany sold  the  premises  to  Overstreet  and  transferred  to  him  the 
note  given  it  by  Brigham  for  the  rent  for  1906 ;  possession  of  the 
lands  being  surrendered  by  the  company  to  Overstreet,  subject  to 
the  tenancy  of  Brigham  for  that  year.  Before  Brigham  sold  to  the 
fertilizer  company,  and  while  he  was  owner  of  the  premises,  he 
placed  thereon  a  sugar  cane  house,  sugar  cane  boiler,  furnace  and 
sugar  cane  mill;  the  boiler  being  placed  in  a  brick  furnace,  which 
was  on  the  ground  and  the  chimney  to  which  ran  up  through  and 
above  the  roof  of  the  sugar  mill  house,  over  the  boiler  and  furnace, 
the  mill  being  put  up  by  placing  four  large  substantial  lightwood 
posts  firmly  in  the  ground,  and  being  fastened  securely  to  the 
posts  by  spikes  driven  through  holes  in  the  mill  and  into  the  posts. 
All  of  these  were  permanent  and  substantial  fixtures,  intended  to 
remain  on  the  premises.  "Brigham  further  put  down  on  said 
place,  as  a  permanent  fixture,  an  old,  broken  or  cracked  sugar  cane 
boiler,  same  being  put  down  in  a  large  horse  stable,  under  a  build- 
ing, which  boiler  was  used  as  a  watering  place  for  stock,  and  from 
which  he  ran  a  gutter  from  the  well  of  the  lot  on  said  premises, 
same  being  a  substantial  fixture  put  there  by  the  said  Charles 
Brigham,  the  then  owner  of  said  premises,  with  intention  that  it 
remain  there;  [and]  while  in  possession  of  said  property  as  the 
owner  thereof  said  Charles  Brigham  erected  thereon  a  storehouse, 
into  which  a  number  of  shelves,  such  as  are  usually  built  in  such 
buildings,  w^ere  built,  which  shelves  are  attached  and  nailed  to  the 
building,  and  form  part  of  the  building;  *  *  *  at  the  same 
time  [he]  put  in  said  store  several  large  counters  and  tables  and  a 
very  large  meat  box,  which,  though  not  attached  and  nailed  to  the 
floor,  are  very  cumbersome  and  too  large  to  be  removed  convenient- 
ly, and  were  put  there  by  the  said  Charles  Brigham  for  the  purpose 
of  being  allowed  to  remain  there  as  permanent  fixtures."  In  the 
deed  to  the  premises  from  Brigham  to  the  phosphate  and  fertilizer 
company  none  of  these  fixtures  was  reserved,  and  all  were  passed 
to  petitioner  under  the  sale  of  the  premises  to  him  by  such  company. 
There  is  a  quantity  of  manure  and  compost  in  the  stables,  sheds, 
and  lots  on  the  premises  made  during  the  year  1906  from  straw 
and  manure  from  the  .stock.  Brigham  pretends  to  have  sold  all 
of  said  fixtures  to  Rackley,  and  they  are  threatening  and  are, 
without  authority,  about  to  remove  the  same  from  the  premises,  and 
"the  damage  to  petitioner,  .should  the  said  Charles  Brigham  and  the 


38  Cases  on  Peksonal  Property 

said  C.  F.  Rackley  *  *  *  be  allowed  to  remove  said  manure  and 
fixtures  from  said  premises,  will  be  irreparable  and  inestimable." 
Injunction  was  prayed  against  the  defendants,  restraining  them 
from  removing  any  of  such  "fixtures"  from  the  premises.  *  *  * 
The  court  granted  an  interlocutory  injunction,  and  the  defendant, 
Brigham,  excepted. 

Fish,  C.  J. — The  court  was  authorized  by  the  evidence  to  find 
that  all  of  the  various  things  involved  in  this  controversy,  except 
the  manure,  were  placed  upon  the  premises,  in  the  manner  described 
in  the  petition,  by  Brigham  while  he  was  the  owner  of  the  premises. 
Realty  or  real  estate  includes  all  lands  and  the  buildings  thereon, 
and  all  things  permanently  attached  to  either.  Civil  Code,  §  3045. 
Anything  intended  to  remain  permanently  in  its  place,  though  not 
actually  attached  to  the  land,  such  as  a  rail  fence,  is  a  part  of  the 
realty  and  passes  with  it.  Id.  §  3049.  In  Cunningham  v.  Cureton, 
96  Ga.  489,  23  S.  E.  420,  it  was  held,  in  effect,  that  whatever  is 
placed  in  a  building  to  carry  out  the  obvious  purpose  for  which 
it  was  erected,  or  to  permanently  increase  its  value  for  such  purpose)^ 
and  not  intended  to  be  removed  about  from  place  to  place,  but  to 
be  permanently  used  with  the  building,  becomes  a  part  of  the  realty, 
although  it  may  be  removable  wi/thout  injury  either  to  itself  or  the 
building.  *  *  *  "As  between  grantor  and  grantee  the  strict 
rule  of  the  common  law  prevails,  that,  in  the  absence  of  an  agree- 
ment to  the  contrary,  all  fixtures,  whether  actually  or  construc- 
tively annexed  to  the  realty,  pass  by  a  conveyance  of  the  freehold. ' ' 
Wolff  V.  Sampson,  123  Ga.  400,  51  S.  E.  335.  A  tenant  cannot 
remove  permanent  fixtures,  or  otherwise  injure  the  rented  prop- 
erty. Civil  Code,  §  3119.  In  view  of  the  law  which  we  have  cited, 
as  applied  to  the  facts  as  the  court  was  authorized,  from  the  evi- 
dence to  find  them,  we  have  no  difficulty  in  holding  that  all  the 
fixtures  in  question  which  were  on  the  premises  when  Brigham 
sold  the  land  to  the  Southern  States  Phosphate  &  Fertilizer  Com- 
pany passed  under  his  conveyance  of  the  land  to  that  company, 
and  from  such  company  to  Overstreet,  and  that  Brigham,  who 
was  the  tenant  of  Overstreet,  had  no  right  to  remove  them  from 
the  rented  premises. 

5.  Nor  did  the  tenant  have  a  right  to  remove  the  manure.  Ma- 
nure made  in  the  usual  course  of  husbandry  upon  a  farm  is  so 
attached  to  and  connected  with  the  realty  that,  in  the  absence 
of  an  express  stipulation  to  the  contrary,  it  becomes  appurtenant 
to  and  is  treated  as  a  part  of  the  realty.     *     *     * 


Chattels  Real  39 

Our  conclusion  is  that  an  injunction  was  properly  granted  in 
the  present  case.  We  have,  of  course,  treated  the  case  from  the 
standpoint  that  the  evidence  was  sufficient  to  establish  the  fact 
that  the  defendant  placed  all  the  fixtures  upon  the  land  while 
he  was  the  owner  thereof.  There  was  practically  no  dispute  as 
to  this,  except  as  to  the  new  sugar  cane  boiler,  which  the  defendant 
testified  that  he  placed  upon  the  premises  after  he  became  the 
tenant  thereof,  but  which  the  plaintiff  and  another  witness  testi- 
fied was  placed  there  w^hile  the  defendant  was  the  owner  of  the 
land.  If,  upon  the  final  trial,  it  should  appear  that  the  fixtures, 
or  any  of  them,  were  placed  upon  the  premises  after  the  defend- 
ant ceased  to  be  the  owner  and  became  a  tenant,  then  other  ques- 
tions might  arise  which  we  do  not  deem  it  necessary  to  now  con- 
sider. Of  course,  if  the  counters,  etc.,  in  the  storehouse  had  been, 
in  legal  contemplation,  severed  from  the  realty  by  a  separate  sale 
of  the  same  by  Brigham  to  Mrs.  Daniel  while  he  was  the  owner 
of  the  premises,  they  became  her  personal  property,  and  conse- 
quently did  not  pass  under  his  subsequent  sale  of  the  land  to  the 
phosphate  and  fertilizer  company,  and  if  Mrs.  M.  L.  Brigham 
purchased  them  from  Mrs.  Daniel,  she  M^ould  not  be  prevented 
from  removing  them  by  the  injunction  granted  in  this  case  against 
Brigham.  As  they  are  not  Charles  Brigham 's  property,  he  is  not 
hurt  by  being  enjoined  from  removing  them  from  the  premises. 
Judgment  affirmed.    All  the  Justices  concur."^ 


Adaptation. 
ROGERS  et  al.  v.  CROW  et  al. 
40  Mo.  91,  93  Am.  Dec.  299.     1867. 
The  facts  are  stated  in  the  opinion. 

Wagner,  J. — This  was  an  action  commenced  in  the  St.  Louis 
Court  of  Common  Pleas  by  the  respondents  to  recover  the  value 
of  certain  property  which  they  alleged  to  be  personal  chattels 
belonging  to  them,  and  unlawfully  possessed  and  detained  by  the 
appellants.  From  the  record  it  appears  that  respondents  were 
vestrymen  and  trustees  for  St.  Paul's  Parish,  a  Protestant  Epis- 

fSee  Childs'  Personal  Property,  §§13,  31. 


40  Cases  on  Personal  Property 

eopal  clmrch  in  the  city  of  St.  Louis,  and  that  in  their  house  of 
worship  they  placed  an  organ,  gas  fixtures,  and  other  articles, 
for  the  convenient  occupancy  of  the  same.  That  being  pecuniarily 
embarrassed  they  executed  a  deed  of  trust  conveying  the  lot  on 
which  the  house  was  built,  together  with  all  the  buildings,  erec- 
tions, and  improvements,  to  secure  the  payment  of  their  indebted- 
ness. The  notes  which  the  deed  of  trust  was  taken  to  secure  not 
being  paid,  the  trustees  in  the  deed  sold  the  premises  to  satisfy 
the  same,  and  on  the  sale  Derrick  A.  January  became  the  purchaser 
of  the  property.  January  afterwards  deeded  and  conveyed  the 
property  to  appellants,  who  are  now  in  possession  thereof.  On 
the  trial,  respondents  dismissed  their  cause  of  complaint  as  to 
several  of  the  articles  enumerated  in  their  petition,  and  the  court 
found  that  others  passed  by  the  sale  with  the  premises  as  part 
of  the  realty,  but  refused  to  declare  that  the  gas  fixtures  and  the 
organ  were  fixtures,  and  decided  that  they  were  personal  property 
detachable  from  the  real  estate,  and  therefore  did  not  pass  with  it. 

The  evidence  shows  that  when  the  church  was  erected  there  was 
a  niche  or  recess  left  in  the  walls  over  the  vestibule,  in  the  front 
end  of  the  building,  expressly  for  the  reception  of  an  organ ;  that 
the  organ  stands  on  a  floor  or  platform  built  to  receive  it,  and 
is  fastened  to  this  floor  by  nails  driven  through  the  outer  case  of 
the  organ  into  the  floor.  In  the  rear  of  the  organ  the  wall  is  in  a 
rough,  unfinished  state,  and  is  pretty  much  without  ceiling  or 
finish.  If  the  organ  were  removed,  it  would  not  only  destroy  the 
architectural  design,  finish,  and  symmetry  of  the  building,  but 
would  leave  exposed  to  view  the  unfinished  wall  in  the  rear,  and  the 
open  space  above  the  organ  which  is  now  concealed  by  it.  Skilful 
architects  testified  that  they  regarded  the  organ  as  a  part  of  the 
church;  the  internal  finish  of  the  building,  architecturally  con- 
sidered, would  be  incomplete  without  it. 

If  this  contest  had  arisen  between  landlord  and  tenant,  it  would 
admit  of  little  doubt;  for  as  between  landlord  and  tenant  many 
things  which  pass  under  the  general  name  of  fixtures  will  for  the 
encouragement  of  trade  be  permitted  to  be  removed  by  the  tenant 
during  his  term,  which  as  between  heir  and  executor,  vendor  and 
vendee,  or  mortgagor  and  mortgagee,  would  be  considered  as  part 
and  parcel  of  the  realty,  and  would  therefore  belong  to  the  heir, 
or  vendee,  or  mortgagee. 

As  to  the  first  point  presented  in  the  case,  it  has  been  uniformly 
held  that  lamps,  chandeliers,  candlesticks,  candelabra,  sconces,  and 
the  various  contrivances  for  lighting  houses  by  means  of  candles, 


Chattels  Real  41 

oil,  or  other  fluids,  are  not  fixtures,  and  form  no  part  of  the  free- 
hold. 

In  the  case  of  Lawrence  v.  Kemp,  1  Duer,  363,  the  New  York 
Superior  Court  decided  that  gas  fixtures,  when  placed  by  a  tenant 
in  a  shop  or  store,  although  fastened  to  the  building,  are  not  fix- 
tures as  between  landlord  and  tenant. 

In  Wall  V.  Hinds,  4  Gray,  256,  it  was  held  that  a  lessee  could 
take  away  gas  pipes  put  by  him  into  a  house  leased  to  him  for  a 
hotel,  and  passing  from  the  cellar  through  the  floors  and  parti- 
tions, and  kept  in  place  in  the  room  by  metal  bands,  though  some  of 
them  passed  through  wooden  ornaments  of  the  ceiling,  which  were 
cut  away  for  their  removal. 

In  South  Carolina  a  house  and  lot  were  sold  under  a  foreclosure 
of  mortgage,  and  a  few  days  afterwards  the  sheriff,  under  execution 
against  the  mortgagor,  removed  and  sold  certain  gas  chandeliers 
and  pendant  hall  gas  burners,  and  the  court  decided  unanimously 
that  they  were  not  fixtures  which  passed  to  the  purchaser  of  the 
real  estate  by  the  conveyance  of  the  land.  Montague  v.  Dent,  10 
Rich.  135. 

The  same  question  arose  in  Pennsylvania  in  the  case  of  Vaughen 
V.  Halderman,  9  Casey,  522,  where  porperty  was  sold  by  the  sheriff 
in  pursuance  of  an  execution  placed  in  his  hands,  and  it  was  decided 
in  the  same  way,  the  court  holding  that  gas  fixtures  did  not  pass 
under  the  sale  to  the  vendee  as  a  part  of  the  realty.  In  his  opinion. 
Read,  J.,  says:  "The  pipes  connect  with  the  street  main,  and  are 
now  carried  up  through  the  walls  and  ceilings  of  the  house,  with 
openings  at  the  points  where  it  is  intended  to  attach  fixtures  for 
the  purpose  of  lighting  the  rooms  and  entries.  These  are  called 
gas  fittings;  whilst  the  chandeliers  and  other  substitutes  for  the 
oil  lamps  and  candles  are  called  gas  fixtures,  and  are  screwed  onto 
the  pipes  and  cemented  only  to  prevent  the  escape  of  gas ;  and  may 
be  removed  at  pleasure,  without  injury  either  to  the  fittings  or 
to  the  freehold.  There  is  therefore  really  nothing  to  distinguish 
this  new  apparatus  from  the  old  lamps,  candlesticks  and  chande- 
liers, which  have  always  been  considered  as  personal  property." 

The  next  question,  as  to  whether  the  organ  is  to  he  regarded 
as  a  fixture,  is  not  entirely  clear.  Great  diversity  exists  in  the 
adjudications  on  this  subject,  and  few  decisions  can  be  considered 
as  absolute  authorities  in  other  instances,  even  of  fixtures  of  a 
similar  denomination.  It  will  be  found  on  an  examination  of  the 
books,  that  considerations  of  custom,  intention,  ornament,  con- 
venience, and  so  forth,  have  all  had  influence  in  controlling  the 


42  Cases  on  Personal.  Property 

cases.  Whilst  it  has  been  held  that  chattels  should  not  be  regarded 
as  fixtures,  unless  they  are  so  far  incorporated  with  the  structure 
of  which  they  form  a  part  that  they  cannot  be  severed  from  it 
without  injuring  the  structure  itself,  as  in  Farrar  v.  Chauffette, 
5  Den.  527 ;  yet  the  general  (sourse  of  decision  is  in  favor  of  view- 
ing everything  as  a  fixture  which  has  been  attached  to  the  realty, 
with  a  view  to  the  purpose  for  which  it  is  employed  or  held,  how- 
ever slight  or  temporary  the  connection  between  them.  Walmsley 
V.  Milne,  7  C.  B.  (N.  S.)  115;  Wilde  v.  Waters,  16  C.  B.  637.  In 
accordance  with  this  rule,  it  has  been  held  repeatedly  that  the 
machinery  of  a  manufactory  is  to  be  regarded  as  a  part  of  the 
realty,  whether  it  is  attached  to  the  body  of  the  building  or  merely 
connected  with  the  other  machinery  by  running  bands  or  gearing 
which  may  be  thrown  off  at  pleasure  and  without  injury  to  the 
freehold.  In  general,  it  may  be  said  that  as  between  vendor  and 
vendee  the  purchaser  is  clearly  entitled  to  everything  that  has  been 
annexed  to  the  freehold  with  a  view  of  increasing  its  value  or 
adapting  it  to  the  purposes  for  which  it  is  used;  and  within  this 
principle  it  has  been  held  that  pipes  and  bath  tubs  of  a  dwelling, 
the  counters  of  a  store,  the  vats,  stills,  and  kettles  of  a  brewery 
or  distillery,  are  fixtures.  Cohen  v.  Kyler,  27  Mo.  122;  Tabor  v. 
Robinson,  36  Barb.  485;  Man  v.  Schwarzwalder,  4  E.  D.  Smith, 
273;  Bryan  v.  Lawrence,  5  Jones,  337. 

Mr.  Dane,  in  his  Abridgement  of  American  Law,  remarks,  "It 
is  very  difficult  to  extract  from  all  the  cases  as  to  fixtures,  in  the 
books,  any  one  principle  upon  which  they  have  been  decided; 
though  being  fixed  and  fastened  to  the  soil,  house,  or  freehold, 
seems  to  have  been  the  leading  one  in  some  cases,  though  not  the 
only  one. ' '  And  he  further  remarks,  ' '  not  the  mere  fixing  or  fas- 
tening is  alone  to  be  regarded,  but  the  use,  nature  and  intention," 
3  Dane's  Abr.  156. 

In  Teaf  v.  Hewitt  et  al.,  1  Ohio  St.  511,  Ch.  J.  Bartley,  after 
a  very  able  review  of  the  authorities,  reached  the  conclusion,  that 
the  united  application  of  the  following  requisites  might  be  con- 
sidered the  safest  criterion  of  a  fixture:  "1.  Actual  annexation 
to  the  realty  or  something  appurtenant  thereto.  2.  Application  to 
the  use  and  purpose  of  that  part  of  the  realty  vdth  which  it  is 
connected.  3.  The  intention  of  the  party  making  the  annexation 
to  make  the  article  a  permanent  accession  to  the  freehold;  this 
intention  being  inferred  from  the  nature  of  the  arcticle  affixed,  the 
relation  and  situation  of  the  party  making  the  annexation,  the 


Chattels  Real  43 

structure  and  mode  of  annexation,  and  the  purpose  and  use  for 
which  the  annexation  has  been  made." 

In  the  building  of  the  church,  a  space  or  recess  was  purposely 
left  to  be  exclusively  appropriated  to  the  reception  of  an  organ; 
that  part  of  the  building  was  left  incomplete,  and  was  never 
finished  till  the  organ  was  put  in  position.  This  was  necessary  to 
give  that  part  of  the  house  perfection,  symmetry,  and  make  it 
conform  to  the  intention  and  uses  had  in  view  when  it  was  erected. 
Architecturally  it  was  incomplete  till  the  organ  was  fitted  and 
fastened  and  the  workmen  closed  their  labors,  hiding  the  unfinished 
walls  in  the  rear.  The  character  or  permanency  of  the  annexation 
in  this  particular  case  can  have  no  controlling  or  preponderating 
weight.  Upon  an  examination  of  the  design,  use  and  adaptability, 
the  evidence  of  intention  was  manifest  and  unmistakable,  and  the 
purchaser  had  a  right  to  be  governed  by  these  considerations  in 
regarding  it  as  a  fixture.  In  the  execution  of  the  deed  of  trust 
the  grantors  made  no  reservation,  and  it  must  be  presumed  that 
they  intended  everything  should  pass  by  their  deed  that  was  an- 
nexed to  the  realty  and  stand  pledged  as  a  security  for  the  debt. 
Under  all  the  circumstances,  we  are  of  the  opinion  that  the  organ 
was  a  fixture  and  formed  parcel  of  the  realty,  and  as  such  is  right- 
fully the  property  of  the  grantees. 

The  judgment  must  be  reversed  and  the  cause  remanded.  The 
other  judges  concur.^ 


Landlord  and  Tenant. 


Bight  of  Tenant  to  Remove  Fixtures — Tenancy  Certain — Termina- 
tion by  Act  of  Tenant. 

FREE  v.  STUART  et  al. 

39  Neb.  220,  57  N.  W.  991.    1894. 
The  facts  are  stated  in  the  opinion. 

Norval,  C.  J. — This  action  was  brought  in  the  court  below  by 
appellee,  M.  E.  Free,  to  foreclose  a  chattel  mortgage  given  by  the 
defendants  Stuart  &  Sehemensky  on  two  greenhouses  erected  by 

8  See  Childs'  Personal  Property,  §15. 


44  Cases  on  Personal  Property 

them  on  leased  real  estate  owned  by  appellants,  George  W.  Sautter 
and  Frank  Sautter.  The  cause  was  tried  by  the  district  court 
upon  a  written  agreed  statement  of  facts,  signed  by  the  attorney 
of  the  respective  parties,  of  which  the  following  is  a  copy:  "  (1) 
In  the  spring  of  1888  the  said  Geo.  W.  and  Frank  Sautter  were  the 
owners  in  fee  of  a  certain  dwelling  house,  without  outbuildings 
and  about  ten  acres  of  land  surrounding,  in  the  outskirts  of  the 
city  of  Omaha,  and  within  the  limits  of  said  city.  That  at  said 
time  said  Sautter  brothers  rented  the  house  and  outbuildings  only 
from  April  1,  1888,  to  March  1,  1889,  to  the  defendant  C.  Sche- 
mensky,  for  $100.00.  The  rent  for  this  term  was  paid.  (2)  At  the 
end  of  of  this  term  said  Geo.  W.  and  Frank  Sautter  rented  the  house, 
barn,  orchard,  vineyard,  and  all  the  land  for  one  year  for  $200.00, 
the  lease  expiring  March  1,  1890,  and  of  this  rent  the  tenant, 
Schemensky,  paid  $93.00,  leaving  a  balance  still  unpaid  of  $107.00, 
(3)  At  the  end  of  this  term,  on  March  3,  1890,  said  Geo.  "W.  and 
Frank  Sautter  rented  the  same  premises  for  another  year  to  said 
Schemensky  for  $225.00,  the  lease  expiring  March  1,  1891.  Of  this 
rent  there  was  paid  $13.40.  (4)  At  the  end  of  the  last  term  the 
tenant,  Schemensky,  held  over  until  May  12,  1891,  at  which  time 
the  tenant  quit  the  possession  and  occupation  of  the  premises, 
leaving  a  total  of  rent  unpaid  amounting  to  the  sum  of  $341.60, 
no  part  of  which  has  yet  been  paid.  (5)  That  in  the  spring  of 
1890  said  Schemensky  requested  permission  of  said  Geo.  W.  and 
Frank  Sautter,  owners  of  said  premises,  to  erect  thereon  two  build- 
ings and  a  boiler  house,  and  that  the  same  were  erected  during 
the  spring  and  early  summer  of  1890.  They  were  erected  by 
building  the  same  out  of  planks  and  posts,  with  the  use  of  glass 
and  sash,  as  is  usually  the  case  in  greenhouses,  the  said  boards  or 
planks  being  fastened  to  a  number  of  upright  posts  that  were 
inserted  and  fastened  into  the  ground  for  a  distance  of  about  two 
feet  below  the  surface.  The  framework  was  built  around  said 
posts.  (6)  That  there  was  also  constructed  in  said  greenhouses  a 
boiler  for  the  purpose  of  heating  the  same,  by  building  a  brick 
foundation  down  into  the  ground,  and  building  said  brick  up  over 
and  around  said  boiler,  leaving  it  stationary,  and  pipes  were  at- 
tached to  and  ran  from  said  boiler  through  the  various  portions  of 
the  house  so  constructed,  and  fastened  to  said  greenhouse,  in  order 
thereby  to  conduct  the  heated  water,  and  for  the  purpose  of  keeping 
the  temperature  in  a  condition  required  for  greenhouses.  The  two 
buildings  used  as  greenhouses  were  each  75  feet  long  and  10  feet 
wide,   and  were  covered  with  glass  and  sash.     They  were   con- 


Chattels  Rel\l  45 

structed  by  nailing  strips  running  from  post  to  post,  and  onto 
those  strips  the  planks  for  the  sides  and  ends  were  nailed  securely ; 
and  said  houses  and  boiler  are  still  remaining  on  said  premises 
a  when  originally  constructed.  (7)  On  January  14,  1891,  said 
Schemensky  and  one  Stuart,  who  were  partners  as  Stuart  &  Sche- 
mensky,  executed  to  the  plaintiff  a  chattel  mortgage,  a  true  copy  of 
which  is  attached  and  made  a  part  of  plaintiff's  petition,  *  *  * 
and  the  amount  now  due  thereon  and  unpaid  by  said  mortgagors 
to  the  plaintiff  is  $182.40.  (8)  Said  property  was  leased  for  the 
purpose  of  using  the  residence  as  a  dwelling  house,  and  the  land 
for  the  pui-pose  of  gardening,  raising  flowers  and  shmbs,  it  having 
been  used  for  this  purpose  for  several  years  last  past.  At  the  time 
said  houses  were  constructed,  there  was  nothing  said  by  the  tenant 
about  removing  said  greenhouses,  boiler,  and  boiler  house  at  the 
expiration  of  the  lease  or  at  any  other  time.  (9)  The  plaintiff 
claims  a  lien  on  said  houses  and  boiler  by  virtue  of  the  foregoing 
chattel  mortgage,  and  the  defendants  George  AV.  and  Frank  Sautter 
claim  them  as  fixtures  to,  and  a  part  of,  said  land."  The  trial 
court  found  that  Stuart  &  Schemenslry-  executed  and  delivered  to 
plaintiff  the  chattel  mortgage  described  in  the  petition  to  secure 
an  indebtedness  of  $163.84;  that  the  buildings  described  in  said 
mortgage  were  erected  by  the  mortgagors  upon  leased  premises, 
and  were  such  fixtures  as  the  tenants  had  a  right  to  remove ;  and 
that  said  houses  are  subject  to  the  said  chattel  mortgage.  From  a 
decree  of  foreclosure  and  sale  the  Sautters  appeal  to  this  court. 

The  point  in  dispute  is,  which  party  is  entitled  to  the  buildings 
covered  by  the  mortgage?  The  mortgagee  claims  them  by  virtue 
of  his  mortgage,  while  the  appellants  insist  that,  as  the  improve- 
ments were  erected  by  tenants  on  leased  premises,  they  are  a  part 
of  the  realty,  and  neither  the  tenants  nor  the  mortgagee  had  a 
right  to  remove  them,  at  least  after  the  expiration  of  the  tenancy. 
*  *  *  The  decisions  on  the  subject  are  at  variance  and  irrecon- 
cilable. *  *  *  For  the  purposes  of  this  case  we  will  assume 
that  the  buildings  in  controversy  were  trade  fixtures,  and  were 
erected  under  such  circumstances  as  to  entitle  the  tenants  to  re- 
move them  had  they  exercised  that  right  in  time.  The  authorities 
are  quite  uniform  to  the  effect  that,  in  the  absence  of  an  agreement 
or  understanding  to  the  contrary,  a  tenant  cannot  re-enter,  and 
remove  his  fixtures  and  improvements,  after  the  expiration  of  his 
tenancy.  By  surrendering  pos.session  he  forfeits  his  rights  to 
them.  The  rule  on  the  subject  is  well  stated  by  Mr.  Taylor  in 
his  valuable  work  on  Landlord  and  Tenant,  thus:    "The  decisions 


46  Cases  on  Personal  Property 

also  agree  that  whatever  fixtures  the  tenant  has  a  right  to  remove 
must  be  removed  before  his  term  expires,  or  at  least  before  he  quits 
possession ;  for,  if  the  tenant  leaves  the  premises  without  removing 
them,  and  the  landlord  takes  possession,  they  become  the  property 
of  the  landlord.  The  tenant's  right  to  remove  is  rather  considered 
a  privilege  allowed  him  than  an  absolute  right  to  the  things  them- 
selves. If  he  does  not  exercise  the  privilege  before  his  interest 
expires,  he  cannot  do  it  afterwards,  because  the  right  to  possess 
the  land  and  the  fixtures  as  a  part  of  the  realty  vests  immediately 
in  the  landlord;  and,  although  the  landlord  has  no  right  to  com- 
plain, if  the  land  be  restored  to  him  in  the  same  plight  it  was 
before  he  made  the  lease,  yet  if  the  land  is  suffered  to  return  to 
him  with  additions  and  improvements,  even  by  forfeiture  or  notice 
to  quit,  he  has  a  right  to  consider  them  as  part  of  his  property." 
And  in  the  case  of  Friedlander  v.  Ryder,  30  Neb.  787,  47  N.  W.  83, 
in  considering  the  authority  of  a  tenant  to  remove  his  fixtures, 
we  said:  "Under  the  lease,  as  established  by  the  evidence,  the 
tenant  had  a  right,  before  the  surrender  of  possession,  to  remove 
any  improvements  owned  by  him  which  are  embraced  under  the 
head  of  tenant's  fixtures,  but  the  tenant  had  no  authority  to  re- 
move such  improvements  after  the  termination  of  the  tenancy; 
in  other  words,  the  tenant  could  not  re-enter  to  remove  his  fixtures 
after  the  surrender  of  his  possession  to  the  landlord."  It  appears 
from  the  stipulation  that  the  lease  under  which  the  tenants  occu- 
pied the  premises  expired  on  March  1,  1891,  and  that  on  the  12th 
day  of  May  following  they  quit  possession  without  removing  the 
buildings  which  they  had  erected  by  permission  of  the  owner  of 
the  realty.  The  record  fails  to  disclose  that  there  was  any  agree- 
ment or  understanding  between  the  parties  about  the  removal  of 
the  improvements  at  the  expiration  of  the  lease  or  any  other  time. 
In  view  of  these  facts,  there  could  be  no  doubt  that  the  tenants 
have  forfeited  their  right  of  removal. 

Counsel  for  appellee  contend  that  the  tenancy  had  not  expired 
when  the  tenants  surrendered  possession;  that  they  were  tenants 
from  year  to  year;  and  although  the  lease  terminated  March  1, 
1891,  they  having  occupied  the  premises  for  several  months  after 
that  time,  the  lease  was  thereby  continued  in  force  for  another 
year,  or  until  March,  1892.  It  is  a  familiar  doctrine  that  where, 
in  case  of  a  tenancy  from  year  to  year,  the  tenant  continues  to 
occupy  the  property  after  the  expiration  of  his  lease  by  the  consent 
of  the  landlord,  it  will  be  presumed,  in  the  ahsence  of  an  express 
agreement  to  the  contrary,  that  the  lease  is  extended  for  another 


Chattels  Real  47 

year;  but  we  are  unable  to  see  how  this  rule  can  aid  the  appellee, 
since  the  tenants  voluntarily  abandoned  possession,  and  it  does  not 
appear  that  either  they  or  the  landlord,  after  such  abandonment, 
regarded  the  lease  in  force.  The  doctrine  that  the  right  of  a  tenant 
to  remove  his  improvements  must  be  exercised  before  the  expiration 
of  his  lease  applies  alike  to  cases  where  the  tenancy  terminates  by 
lapse  of  time,  and  to  cases  where  it  is  determined  by  his  own  act.  He 
may  forfeit  his  right  to  remove  his  fixtures  by  voluntarily  surren- 
dering the  possession  to  the  landlord  without  reservation.  It  is 
quite  probable,  however,  that  such  surrender  would  not  affect  the 
previously  acquired  rights  of  the  tenants,  vendees,  or  mortgagees. 
They  should  have  the  right  to  enter  and  remove  the  fixtures  at  any 
time  before  the  lease  would,  by  its  terms,  have  expired.  In  the 
case  at  bar  no  attempt  has  been  made  to  remove  the  buildings  at 
any  time.  They  were  on  the  premises  when  the  decree  of  fore- 
closure was  entered,  which  was  long  after  March  1,  1892,  and  it  is 
not  claimed  that  the  tenancy  continued  after  that  date.  Upon 
principle  as  well  as  authority  we  are  constrained  to  hold  that 
the  mortgagees  forfeited  their  right  to  the  buildings  by  their  fail- 
ure to  exercise  it  during  the  tenancy. 

*  *  *  Our  conclusion  is  that  the  trial  court  erred  in  decree- 
ing the  foreclosure  of  the  mortgage.  The  decree  is  therefore 
reversed,  and  the  action  dismissed.  Judgment  accordingly.  The 
other  judges  concur.^  ,  ^   /  ^  ^  ^  1  ^  \  dJi  (L 

Tenancy  Uncertain. 

RAY  V.  YOUNG. 

160  Iowa  613, 142  N.  W.  393, 46  L.  R.  A.  (N.  8.)  947.    1913. 

Bill  in  equity  for  an  injunction  to  restrain  the  removal  of  a 
building.    Decree  for  plaintiff  and  defendant  appealed. 

[Mrs.  L.  E.  Ray  owned  a  life  estate  in  certain  premises  which 
she  lea.sed  to  the  defendant,  Young,  for  a  period  of  one  year,  with 
the  privilege  of  renewal  for  five  years.  At  the  time  of  making  the 
lease,  the  defendant  did  not  know  that  Mrs.  Ray  had  only  a  life 
estate  in  the  premises.  On  November  1,  1909,  the  defendant  entered 
under  a  written  lease  for  one  year  with  the  privilege  of  five,  which 
9  See  Childs'  Personal  Property  §§18,  19. 


48  Cases  on  Personal  Property 

lease  contained  a  provision  allowing  the  tenant  to  erect  a  building 
to  be  used  as  a  garage  and  repair  shop  and  to  remove  the  same  at 
the  expiration  of  the  lease.  Young  built  the  building  and  con- 
tinued to  live  on  the  premises  until  June  8,  1911,  when  Mrs.  Ray 
died.  He  had  previously  paid  his  rent  up  to  January,  1912,  having 
made  an  oral  agreement  with  the  plaintiff,  a  grandson  of  Mrs.  Ray, 
to  remain  on  the  premises.  Negotiations  for  a  written  lease  were 
also  entered  into,  but  never  consummated.  On  January  3,  1912, 
Young  prepared  to  remove  the  building  which  he  had  erected, 
and  was  served  with  an  injunction  prohibiting  such  removal.] 

Evans,  J. —  *  *  *  The  equity  of  good  conscience  is  not  with 
the  plaintiff  in  this  case.  If  he  is  entitled  to  the  decree  awarded 
below,  it  must  be  upon  the  ground  of  absolute  legal  right  unaffected 
by  equitable  considerations.  The  argument  on  behalf  of  the  plain- 
tiff is  that  he  is  not  bound  by  the  tenns  of  the  contract  between 
the  defendant  and  his  lessor ;  that  the  rights  of  the  defendant  under 
his  contract  terminated  with  the  death  of  such  lessor;  that  the 
death  of  such  lessor  terminated  not  only  the  defendant's  right  of 
occupancy  but  his  right  of  removal  of  the  building ;  that  the  right  of 
removal  provided  for  by  the  terms  of  the  lease  could  only  be  exer- 
cised during  the  term  of  the  tenancy ;  and  that  at  the  death  of  the 
lessor  the  building  passed  to  the  remainderman  as  a  part  of  the 
real  estate.  It  is  also  contended  that  after  the  death  of  the  lessor 
the  defendant  entered  into  a  new  oral  lease  with  the  plaintiff, 
and  that  he  became  thereby  estopped  from  claiming  ownership  of 
the  building.     *     *     *  , 

It  must  be  conceded  that  the  terms  of  the  contract  between  the 
defendant  and  his  lessor  are  not  binding  as  such  upon  the  plaintiff 
as  remainderman.  Stewart  v.  Matheny,  66  Miss.  21  (5  South.  387, 
14  Am.  St.  Rep.  538)  ;  Jones  v.  Shufflin,  45  W.  Va.  729  (31  S.  E. 
975,  72  Am.  St.  Rep.  848).  This  contract  can  be  considered  only  as 
bearing  upon  the  rights  of  the  defendant  as  they  were  up  to  the 
time  of  the  death  of  his  lessor.  It  is  the  contention  of  the  plaintiff 
that  such  contract  cannot  be  considered  for  any  purpose. 

In  view  of  such  contention,  we  may  as  well  inquire  first  whether, 
independent  of  the  provision  of  the  contract  for  the  right  of 
removal,  the  defendant  had  a  right  as  between  him  and  his  lessor  to 
remove  the  building  erected  by  him.  And  this  depends  upon  the 
further  question  whether  or  not  the  building  should  be  classified  as 
a  trade  fixture.     *     *     * 


Chattels  Real  49 

Without  dispute  the  building  was  built  and  used  for  garage  and 
repair-shop  purposes.     *     *     * 

There  are  occasional  statements  to  be  found  to  the  effe<3t  that  all 
annexations  made  by  the  tenant  for  the  better  enjoyment  of  the 
premises  are  removable  by  him,  but  these  are  not  in  accord  with 
the  weight  of  authority,  which  is  substantially  that  the  tenant's 
rights  of  removal  are  restricted  to:  (1)  Trade  fixtures;  (2) 
domestic  and  ornamental  fixtures;  and  by  some  decisions,  (3) 
agricultural  fixtures.     *     *     * 

Beyond  question  the  building  under  consideration  in  this  case 
was  built  by  the  defendant  and  used  by  him  strictly  for  trade  pur- 
poses within  the  meaning  of  the  law  on  that  subject.  Regardless, 
therefore,  of  the  particular  provision  in  the  defendant's  contract 
with  his  lessor,  he  had  a  right  to  remove  his  buildings  as  between 
him  and  his  lessor  as  a  "trade  fixture,"  provided,  of  course,  that 
he  could  do  so  without  substantial  injury  to  the  premises. 

Taking  such  right  as  it  then  was  immediately  preceding  the 
death  of  the  lessor,  the  question  is  then  projected  whether  his  right 
of  removal  of  his  own  property  from  the  leased  premises  termi- 
nated instanter  by  the  death  of  his  lessor  or  whether  he  was  entitled 
to  a  reasonable  time  to  remove  his  property  from  the  premises. 
There  are  cases  which  hold  to  the  strict  rule  of  forfeiture  against 
the  tenant  in  such  a  case.  Stewart  v.  Matheny ;  Jones  v.  Shufflin, 
supra.  'We  have  never  followed  such  a  rule  of  forfeiture  in  this 
state ;  neither  have  we  had  occasion  to  pass  upon  the  exact  question 
now  before  us.  The  principle  or  theory  upon  which  such  rule  is 
said  to  be  based  is  that  the  fixtures  erected  by  a  tenant  become  a 
part  of  the  realty  as  soon  as  erected,  and  that  there  is  no  right  of 
property  therein  to  the  tenant,  his  right  being  in  the  nature  of  a 
privilege  or  license  to  sever  the  same  from  the  realty  and  repossess 
himself  thereof,  and  that  a  failure  to  exercise  such  right  or  privi- 
lege during  the  term  of  the  tenancy  is  in  legal  eff'ect  a  complete 
abandonment  or  "dereliction"  to  the  landlord.  This  theory  of  the 
nature  of  the  right  of  the  tenant  to  fixtures  erected  by  him  has  been 
repudiated  in  many  jurisdictions,  including  our  own,  as  will  be 
hereinafter  noted.  The  previous  holdings  of  this  court  in  that 
respect  have  been  that  the  tenant  has  a  right  of  property  in  the 
fixtures  so  erected  by  him,  although  he  may  lose  his  right  of  prop- 
erty on  the  theory  of  abandonment  by  the  failure  to  make  timely 
removal  thereof.  While  such  right  remains,  the  property  is  deemed 
as  the  personal  property  of  the  tenant  as  between  him  and  the 
landlord. 

0.  P.  P.— 4 


50  Cases  on  Personal  Property 

We  think  the  weight  of  authority  and  reason  is  that  the  right 
of  removal  is  not  necessarily  lost  by  the  mere  expiration  of  the 
term.  An  active  duty  devolves  upon  the  tenant  to  exercise  his 
right  promptly,  in  view  of  all  the  circumstances  of  the  ease,  and 
ordinarily  he  is  required  to  exercise  it  before  an  actual  surrender 
of  the  possession  of  the  premises.  But,  as  long  as  he  continues  in 
possession  with  the  acquiescence  of  the  owner,  his  right  of  removal 
continues  accordingly.     *     *     * 

The  following  from  Tiffany  on  Landlord  and  Tenant,  Page  1585  et 
seq.,  is  a  sufficient  resume  of  the  authorities  on  this  question : 

*'A  question  has  frequently  arisen  as  to  the  time  at  which  the 
right  to  remove  trade,  ornamental,  or  agricultural  fixtures  must 
be  exercised,  and  it  is  difficult  to  extract  a  uniform  rule  from  the 
decisions  in  this  regard.  In  some  decisions  it  is  stated  that  the 
removal  must  be  made  during  the  term,  in  some  that  the  right 
expires  with  the  tenancy,  and  in  some  that  it  may  be  exercised  a 
'reasonable  time'  after  the  expiration  of  the  term.     *     *     * 

"(b)  Tenancy  of  uncertain  duration.  If  the  tenancy  is  of 
uncertain  duration,  such  as  a  tenancy  at  will,  or  if  it  is  subject  to 
termination  on  a  certain  contingency,  the  tenant  has  a  'reasonable 
time'  after  its  termination  within  which  to  remove  the  fixtures, 
provided  at  least  the  termination  is  not  the  result  of  his  own  volun- 
tary act,  and  provided  further,  it  seems,  he  has  not  relinquished 
possession.  It  has  been  questioned  whether  this  principle  would 
apply  to  a  tenancy  at  will,  when  by  statute  the  tenant  is  entitled  to 
a  reasonable  notice  to  terminate,  and  there  are  cases  somewhat 
adverse  to  its  application  in  favor  of  a  tenant  under  a  lease  made  by 
a  life  tenant,  when  the  leasehold  is  terminated  by  the  death  of  the 
lessor. ' ' 

We  quote  from  Ewell  on  Fixtures,  Page  293,  the  following : 

"As  has  been  already  stated  in  a  prior  chapter,  the  general  rule 
that  the  right  of  removal  of  fixtures  must  be  exercised  before  the 
expiration  of  the  tenancy  is  necessarily  subject  to  exception  in  those 
eases  where  the  tenancy  is  of  uncertain  duration  and  liable  to  be 
determined  by  the  happening  of  some  contingent  or  uncertain  event 
on  which  it  depends,  as  in  the  ease  of  a  tenancy  at  will.  And  in 
analogy  to  the  case  of  tenancy  at  will,  it  seems  that,  to  say  the  least, 
the  right  of  personal  representatives  of  a  deceased  tenant  for  life 
or  in  tail  to  remove  the  fixtures  to  which  they  are  entitled  is  not 
terminated  until  after  the  expiration  of  a  reasonable  time  after 
the  death  of  the  person  whom  they  represent.    Whether  the  right 


Chattels  Re^vl  51 

of  removal  shall  be  considered  to  extend  further  than  this,  the 
authorities  do  not  declare. ' ' 

In  the  light  of  the  foregoing  we  are  disposed  to  follow  the  more 
equitable  rule  which  allows  the  lessee  of  a  tenant  for  life  a.  reason- 
able time  after  the  death  of  his  lessor  to  surrender  his  possession 
and  remove  his  property.  This  is  not  only  equitable  as  between 
all  the  parties,  but  the  contrary  rule  tends  greatly  to  the  unneces- 
sary depreciation  of  the  rental  value  of  a  life  estate  by  the  con- 
stant menace  of  forfeiture. 

Was  the  defendant  guilty  of  undue  delay  in  the  removal  of 
his  property  in  this  case  ?  This  is  largely  a  question  of  fact  under 
the  evidence  in  this  record.  No  objection  was  ever  made  to  his  con- 
tinued possession.  On  the  contrary,  in  August,  negotiations  were 
entered  into  between  the  defendant  and  the  plaintiff's  guardian 
looking  to  a  continuance  of  the  tenancy.  *  *  *  On  this  branch 
of  the  case,  therefore,  we  must  find  that  defendant  acted  with  rea- 
sonable promptness  in  the  proposed  removal  of  the  build- 
ing.    *     *     * 

We  hardly  need  to  say  that  in  so  removing  it  he  was  bound  to  do 
so  without  substantial  injury  to  the  premises  and  that  he  was  bound 

to  leave  the  property  in  as  good  condition  as  when  he   found 

u      «     *     * 

It  follows  that  the  decree  below  must  be  reversed,  the  plaintiff's 
petition  and  the  writ  of  injunction  dismissed.     *     *     *  ^"^ 


Renewal  op  Lease.  ^^ 

Right  of  Tenant  to  Remove  Fixtures. 
WATRISS  v.  FIRST  NATIONAL  BANK  OF  CAMBRIDGE. 
124  Mass.  571,  26  Am.  Rep.  694.     1878. 

Trial  was  had  before  Ames  J.,  who  reported  the  facts  and  findings 
for  consideration  before  the  full  court  substantially  as  follows : 

The  plaintiff  and  one  ITydo  owned  the  premises  as  tenants  in 
common,  and  hy  a  lease  dated  January  1,  1861,  demised  them  to 
the  Harvard  Bank  for  the  term  of  five  years,  at  a  rental  of  $300 
a  year.    The  lease  contained  a  clause  giving  to  the  lessee  the  privi- 

10  See  Childs'  Personal  Property,  §20. 


52  Cases  on  Personal  Property 

lege,  at  its  option,  of  renewing  and  extending  its  enjoyment  of  tlie 
premises  for  the  additional  term  of  five  years  upon  the  same  terms ; 
and  the  lessee  agreed  "to  quit  and  deliver  up  the  premises  to  the 
lessors  or  their  attorney,  peaceably  and  quietly,  at  the  end  of  the 
term,  in  as  good  order  and  condition,  reasonable  use  and  wearing 
thereof,  fire  and  other  unavoidable  casualties  excepted,  as  the  same 
now  are  or  may  be  put  into  by  the  said  lessors. "     *     *     * 

The  lessee  thereupon  constructed  in  the  building  a  fire-proof  safe 
or  vault,  for  the  safe  keeping  of  money,  books  and  securities,  also 
a  portable  furnace  in  the  basement,  with  the  necessarj^  pipes,  flues 
and  registers  for  warming  its  rooms,  and  certain  counters.  The 
premises  were  occupied  by  the  lessee  as  its  banking  rooms. 

On  May  16,  1864,  the  lessee  was  organized  as  a  national  bank 
under  the  laws  of  the  United  States,  and  its  name  was  changed  to 
the  First  National  Bank  of  Cambridge,  but  there  was  no  other 
change  of  its  identity.  In  the  course  of  the  first  term,  a  partition 
was  duly  had  between  Hyde  and  the  plaintiff,  by  virtue  of  which 
the  plaintiff  became  the  sole  owner  of  the  premises.  Before  the 
expiration  of  the  term,  the  defendant  elected  to  continue  to  hold 
under  the  lease  for  the  five  additional  years,  and  a  new  lease  was 
executed  between  the  parties  to  this  action,  bearing  date  October  7, 
1870,  granting  to  the  defendant  a  further  term  of  five  years  from 
January  1,  1871,  at  the  rent  of  $800  a  year.  This  lease  contained 
the  same  clauses  above  quoted  from  the  lease  of  January  1,  1861, 
and  the  following  additional  clause:  **And  provided  also,  that  in 
case  the  premises,  or  any  part  therof ,  during  said  term,  be  destroyed 
or  damaged  by  fire  or  other  unavoidable  casualty,  so  that  the  same 
shall  be  thereby  rendered  unfit  for  use  and  habitation,  then,  and  in 
such  case,  the  rent  herein-before  reserved,  or  a  just  and  propor- 
tional part  thereof,  according  to  the  nature  and  extent  of  the 
injuries  sustained,  shall  be  suspended  or  abated  until  the  said  prem- 
ises shall  have  been  put  in  proper  condition  for  use  and  habitation 
by  the  said  lessor,  or  these  presents  shall  thereby  be  determined 
and  ended,  at  the  election  of  the  said  lessor  or  her  legal 
representatives. ' ' 

On  or  about  November  5,  1875,  the  defendant,  having  concluded 
to  remove  its  business  to  another  building,  proceeded  to  take  down 
the  vault,  and  remove  the  materials  of  which  it  was  composed,  and 
also  the  furnace,  pipes,  flues,  registers,  and  counters  to  its  new 
banking  rooms,  contending  that  it  had  a  right  so  to  do. 

It  was  agreed  that  the  damage  done  by  this  proceeding  to  the 
building,  if  the  property  so  removed  could  lawfully  be  considered 


Chattels  Real  53 

as  fixtures  which  the  defendant,  as  an  outgoing  tenant,  had  a  right 
to  remove,  was  $75 ;  that  the  plaintiff  was  entitled,  at  all  events,  to 
recover  that  sum,  with  interest,  and  that  the  building  could  for  that 
sum  be  restored  to  the  same  good  order  and  condition  as  it  was  in 
at  the  date  of  the  first  lease.  The  jury  returned  a  verdict  for  the 
plaintiff  for  $75,  and  the  judge  reported  the  case  for  the  considera- 
tion of  the  full  court.  If  the  plaintiff  was  entitled  to  recover  a 
greater  sum  than  the  amount  of  the  verdict,  and  if  the  alleged 
fixtures  were  removed  wrongfully  and  in  violation  of  her  rights, 
the  case  was  to  stand  for  trial;  otherwise,  judgment  was  to  be 
entered  on  the  verdict, 

Endicott,  J. — It  is  stated  in  the  report  that  the  Harvard  Bank, 
soon  after  taking  possession  of  the  premises  under  the  lease  of 
January  1,  1861,  put  in  a  counter,  a  portable  furnace  with  its  neces- 
sary connections,  and  a  fire-proof  safe  or  vault,  for  the  removal  of 
which,  in  1875,  this  action  is  brought.  In  1864  the  Harvard  Bank 
was  organized  as  the  First  National  Bank  of  Cambridge.  No  ques- 
tion is  made  that  all  the  proceedings  were  according  to  law.  The 
right  to  the  personal  property  of  the  old  bank  passed  therefore  to 
the  defendant  upon  the  execution  of  the  necessary  papers  and  the 
approval  of  the  proper  officers ;  no  other  assignment  was  necessary. 
Atlantic  National  Bank  v.  Harris,  118  Mass.  147,  151. 

The  right  of  the  defendant  to  occupy  the  premises  under  the  lease 
to  the  Harvard  Bank  for  five  years,  and  to  exercise  the  option  con- 
tained in  the  lease  to  hold  the  premises  for  five  years  more  at  the 
same  rent,  seems  to  have  been  conceded  by  the  lessors;  for  the 
defendant  continued  in  possession,  paying  rent  during  the  whole 
term  of  ten  years  contemplated  by  the  lease,  which  expired  Janu- 
ary 1,  1871.  "We  must  assume  that  the  title,  not  merely  to  movable 
chattels  upon  the  premises,  but  also  to  trade  fixtures  put  in  by  the 
Harvard  Bank,  passed  to  the  defendant,  as  the  plaintiff  does  not 
deny  that  the  defendant  could  have  removed  such  of  the  articles 
as  are  trade  fixtures  at  any  time  before  the  final  expiration  of  the 
lease  on  January  1, 1871. 

In  October,  1870,  about  three  months  before  the  final  expiration 
of  the  term  of  the  old  lease,  the  plaintiff,  one  of  the  original  lessors, 
who  had  in  the  meantime  acquired  the  whole  title  to  the  premises, 
executed  a  new  lease  to  the  defendant,  then  in  occupation,  for  a 
much  higher  rent,  containing  different  stipulations  from  these  in 
the  old  lease,  particularly  in  regard  to  abatement  of  rent  in  case 
of  fire.     This  lease  was  to  take  effect  January  1,  1871,  but  made 


54  Cases  on  Personal  Property 

no  reference  to  the  existing  lease  or  to  the  removal  of  any  trade 
fixtures  then  upon  the  premises.  It  was  in  no  proper  sense  a 
renewal  of  the  old  lease.  It  contained  the  usual  covenants  on  the 
part  of  the  lessee  to  quit  and  deliver  up  the  premises  at  the  end 
of  the  term  in  as  good  order  and  condition  ' '  as  the  same  now  are. ' ' 
Although  executed  before  the  expiration  of  the  earlier  lease,  it  can 
have  no  other  or  different  effect  than  if  given  on  the  day  it  was 
to  become  operative,  and  its  stipulations  and  conditions  are  to  be 
considered  as  if  made  on  that  day.  And  the  question  arises  whether 
the  acceptance  of  the  new  lease  and  occupation  under  it  on  January 
1,  1871,  was  equivalent  to  a  surrender  of  the  premises  to  the  lessor 
at  the  expiration  of  the  first  term.  If  it  did  amount  to  a  sur- 
render, it  is  very  clear  that  the  defendant  could  not  afterwards 
recover  the  articles  alleged  to  be  trade  fixtures. 

The  general  rule  is  well  settled  that  trade  fixtures  become 
annexed  to  the  real  estate  |  but  the  tenant  may  remove  them  during 
his  term,  and,  if  he  fails  to  do  so,  he  cannot  afterwards  claim 
them  against  the  owner  of  the  land.  Poole's  case,  1  Salk.  368; 
Gaffield  v.  Hapgood,  17  Pick.  192 ;  Winslow  v.  Merchants  Ins.  Co., 
4  Met.  306,  311 ;  Shepard  v.  Spaulding,  4  Met.  416 ;  Baron  Parke, 
in  Minshall  v.  Lloyd,  2  M.  &  W.  450.  ,  This  rule  always  applies 
when  the  term  is  of  certain  duration,  as  under  a  lease  for  a  term 
of  years,  which  contains  no  special  provisions  in  regard  to  fixtures. 
Uut  where  the  term  is  uncertain,  or  depends  upon  a  contingency, 
as  where  a  party  is  in  as  tenant  for  life,  or  at  will,  fixtures  may 
be  removed  within  a  reasonable  time  after  the  tenancy  is  deter- 
mined. Ellis  V.  Paige,  1  Pick.  43,  49;  Doty  v.  Gorham,  5  Pick. 
487,  490. 

There  is  another  class  of  cases  which  forms  an  exception  to  the 
general  rule.  Where  a  lease  was  given  by  an  agent  without  suffi- 
cient authority  during  the  absence  of  the  owner,  and  was  termi- 
nated by  the  owner  on  his  return  from  abroad,  it  was  decided  by 
this  court  that  the  lessees  became  tenants  at  sufferance,  and  could 
remove  their  fixtures  within  a  reasonable  time  after  such  termina- 
tion. Antoni  v.  Belknap,  102  Mass.  193.  In  Penton  v.  Robart,  2 
East,  88,  it  was  held  that  a  tenant,  who  had  remained  in  pos- 
session after  the  expiration  of  the  term,  had  the  right  to  take  away 
his  fixtures,  and  Lord  Kenyon  said,  "He  was  in  fact  still  in  pos- 
session of  the  premises  at  the  time  the  things  were  taken  away, 
and  therefore  there  is  no  pretence  to  say  that  he  had  abandoned 
his  right  to  them."  In  Weeton  v.  Woodcock,  7  M.  &  W.  14,  a 
term  under  a  lease  had  been  forfeited  by  the  bankruptcy  of  the 


Chattels  Real  55 

lessee,  and  the  lessor  entered  upon  the  assignees  to  enforce  the 
forfeiture,  and  it  was  held  that  they  might  have  a  reasonable  time 
to  remove  fixtures;  and  Baron  Alderson  said  that  "the  tenant's 
right  to  remove  fixtures  continues  during  his  original  term,  and 
during  such  further  period  of  possession  by  him,  as  he  holds  the 
premises  under  a  right  still  to  consider  himself  as  tenant. "  *  *  * 
In  Mackintosh  v.  Trotter,  3  M.  &  "W.  184,  Baron  Parke,  after 
stating  that  whatever  is  planted  in  the  soil  belongs  to  the  soil, 
remarked  ' '  that  the  tenant  has  the  right  to  remove  fixtures  of  this 
nature  during  his  term,  or  during  what  may,  for  his  purpose,  be 
considered  as  an  excrescence  on  the  term."  He  also  refers  to 
]\Iinshall  v.  Lloyd,  2  M.  &  "W.  450,  as  authority,  wherein  he  stated 
in  the  most  emphatic  manner  that  "the  right  of  a  tenant  is  only 
to  remove  during  his  term  the  fixtures  he  may  have  put  up,  and 
so  to  make  them  cease  to  be  any  longer  fiixtures."  It  is  clear^ 
from  these  cases  that  the  right  of  a  tenant,  in  possession  after  the 
end  of  his  term,  to  remove  fixtures  within  a  reasonable  time,  does 
not  rest  merely  on  the  fact  that  he  is  in  occupation,  or  has  not 
evinced  an  intention  to  abandon,  but  because  he  is  still,  in  con- 
templation of  law,  in  occupation  as  tenant  under  the  original  lease, 
and,  as  Baron  Parke  says,  under  what  may  be  considered  an^ 
excrescence  on  the  term,  that  is,  as  tenant  at  sufferance. 

But  a  very  different  question  is  prasented  when  the  same  tenant 
continues  in  possession  under  a  new  lease  containing  different 
terms  and  conditions,  making  no  reference  to  the  old  lease, 
reserving  no  rights  to  the  lessee  in  fixtures  annexed  during  the 
previous  term  and  not  removed  before  its  expiration,  and  con- 
taining the  covenant  to  deliver  up  the  premises  at  the  end  of  the 
term  in  the  same  condition.  This  is  not  the  extension  of  or  holding 
over  under  an  existing  lease;  it  is  the  creation  of  a  new  tenancy. 
And  it  follows  that  whatever  was  a  part  of  the  freehold  when  the 
lessee  accepted  and  began  his  occupation  under  the  new  lease  must 
be  delivered  up  at  the  end  of  the  term,  and  cannot  be  severed  on 
the  ground  that  it  was  put  in,  as  a  trade  fixture,  under  a  previous 
lease  which  has  expired.  The  failure  of  the  lessee  to  exercise  his 
right  to  remove  during  the  former  term,  or  to  reserve  it  in  his 
new  contract,  precludes  him  from  denying  the  title  of  his  landlord 
to  the  estate  and  the  fixtures  annexed  which  have  become  part 
of  it.  The  occupation  under  the  new  lease  is  in  effect  a  surrender 
of  the  premises  to  the  landlord  under  the  old. 

This  view  is  supported  by  the  authorities.  *  *  *  In  Thresher 
V.  East  London  Waterworks,  2  B.  &  C.  608,  it  was  held  that  a 


56  Cases  on  Person ai^  Property 

lessee,  who  had  erected  fixtures  for  purposes  of  trade  on  the 
premises,  and  afterward  took  a  new  lease  to  commence  at  the 
expiration  of  the  former  one,  which  contained  a  covenant  to  repair, 
would  be  bound  to  repair  the  fixtures,  unless  strong  circumstances 
were  shown  that  they  were  not  intended  to  pass  under  the  general 
words  of  the  second  demise;  and  a  doubt  was  expressed  whether 
any  circumstances,  dehors  the  deed,  can  be  alleged  to  show  they 
were  not  intended  to  pass.  The  case  of  Shepard  v.  Spaulding, 
4  Met.  416,  touches  the  question.  A  lessee  erected  a  building  on 
the  demised  premises,  which  he  had  a  right  to  remove,  but  sur- 
rendered his  interest  to  the  lessor  without  reservation;  afterward 
he  took  another  lease  of  the  premises  from  the  same  lessor,  but  it 
was  held  that  his  right  to  remove  did  not  revive.  When  the  new 
lease  was  made,  it  was  of  the  whole  estate,  including  the  building. 
This  differs  from  the  case  at  bar  only  in  the  fact  that  there  was 
an  interval  between  the  surrender  of  the  interest  under  the  first 
lease  and  the  granting  of  the  second,  when  the  lessor  was  in  actual 
possession.  But  the  acceptance  of  the  new  lease  and  occupation 
under  it  are  equivalent  to  a  surrender  of  the  premises  at  the  end 
of  the  term.  In  Loughtan  v.  Ross,  45  N.  Y.  792,  it  was  held  that, 
if  a  tenant,  having  a  right  to  remove  fixtures  erected  by  him  on 
the  demised  premises,  accepts  a  new  lease  of  such  premises, 
including  the  buildings,  without  reservation  or  mention  of  any 
claim  to  the  buildings,  and  enters  upon  a  new  term  thereunder, 
the  right  to  removal  is  lost,  notwithstanding  his  occupation  has 
been  continuous.  See  also  Abell  v.  Williams,  3  Daly,  17 ;  Merritt 
V.  Judd,  14  Cal.  59 ;  Jungerman  v.  Bovee,  19  Cal.  354 ;  Elwes  v. 
Maw,  3  East.  38;  Taylor  on  Landlord  &  Tenant  (5th  ed.),  Par. 
552;  2  Smith's  Lead.  Cas.  (7th  Am.  ed.)  228,  245,  257. 

We  are  therefore  of  opinion  that  the  defendant  had  no  right 
during  the  second  term  to  remove  any  trade  fixtures  placed  there 
during  the  first.  If  any  of  the  articles  named  were  movable  chat- 
tels, as  the  defendant  contends,  the  plaintiff  cannot  recover  for 
them;  but  if  they  were  permanent  or  trade  fixtures,  the  plaintiff 
may  recover  for  their  removal. 

Case  to  stand  for  trial.^^ 

11  See  Childs '  Personal  Property,  §  19. 


Chattels  Real  -^  57 

KERR  et  al.,  Adm'rs,  v.  KINGSBURY  et  al. 
39  Mich.  150,  33  Am.  Rep.  362.     1878. 
The  facts  are  stated  in  the  opinion. 

CooLEY,  J. — The  controversy  in  this  case  concerns  certain  build- 
ings which  are  claimed  by  complainant  under  a  real  estate  mort- 
gage given  March  13,  1874,  by  defendant  Solomon  0.  Kingsbury 
to  their  testator.  The  defendant  Lyon,  on  the  other  hand,  claimis 
them  as  tenant's  fixtures  under  a  lease  of  the  lands  mortgaged. 

The  facts  appear  to  be  that  the  defendant  S.  0.  Kingsbury,  on 
the  25th  day  of  January,  1871,  being  then  the  owner  of  certain 
premises  situated  on  Calder  and  Almy  streets  in  the  city  of  Grand 
Rapids,  leased  the  Calder  street  lots  for  ten  years  from  June  1, 
1871,  to  John  S.  Long  and  Samuel  P.  Bennett,  constituting  the 
copartnership  of  Long  &  Bennett,  who  took  possession  and  occu- 
pied the  same  for  the  purposes  of  a  coal  and  wood  yard.  The  lease 
contained  a  provision  allowing  the  lessees  thirty  days  on  its  ter- 
mination for  the  removal  of  the  buildings  they  might  erect.  June 
1,  1872,  a  further  lease  of  a  portion  of  the  Almy  street  lots  was 
made  by  Kingsbury  to  Long  &  Bennett,  to  terminate  at  the  same 
time  with  the  other,  and  containing  a  similar  provision  respecting 
the  removal  of  buildings. 

In  September,  1873,  S.  0.  Kingsbury  purchased  of  Long  his 
interest  in  the  copartnership  of  Long  &  Bennett,  and  assumed 
his  place  in  the  business,  which  was  thereafter  carried  on  in  the 
name  of  Kingsbury  &  Bennett.  In  February,  1874,  S.  0.  Kings- 
bury conveyed  all  the  lots  on  the  two  streets  to  Gaius  P.  Kingsbury. 
This  conveyance  does  not  seem  to  have  been  understood  by  the 
parties  as  a  transfer  to  G.  P.  Kingsbury  of  anything  more  than  the 
fee  subject  to  the  leases,  and  the  business  of  Kingsbury  &  Bennett 
went  on  as  before.  In  March,  1874,  the  deed  to  G.  P.  Kingsburj^ 
in  the  mean  time  not  having  been  recorded,  S.  0.  Kingsbury  gave 
to  Henry  A.  Kerr,  whom  the  complainants  represent,  the  mort- 
gage under  which  they  claim.  In  January,  1876,  G.  P.  Kingsbury 
gave  to  Kingsbury  &  Bennett  a  new  lease  of  all  the  lots  for  five 
years  and  five  months.  This  would  make  the  lease  tenninate  at 
the  same  time  as  the  former  leases,  and  upon  the  face  of  the 
transaction  no  reason  appears  for  giving  it,  unless  it  was  to  obtain 
for  the  purposes  of  the  business  the  copartnership  was  engaged  in, 
the  lots  on  Almy  street  which  were  not  covered  by  the  second  lease. 


58  Cases  on  Personai.  Property 

The  buildings  the  right  to  which  is  in  dispute  in  this  case,  had 
all  been  put  up  as  tenant's  erections  previous  to  the  giving  of  the 
Kerr  mortgage,  and  were  occupied  by  the  copartnership  of  Kings- 
bury &  Bennett  for  the  purposes  of  their  business  at  that  time. 
That  firm  subsequently  became  insolvent  and  made  an  assignment 
for  the  benefit  of  their  creditors  to  the  defendant  Lyon,  who  under- 
took to  remove  the  buildings  as  personalty.  It  is  not  disputed  that, 
as  between  landlord  and  tenant,  the  buildings  would  in  general 
have  been  removable,  but  it  is  insisted  that  under  the  facts  of  this 
ease  they  are  covered  by  the  lien  of  the  real  estate  mortgage. 

1.  In  brief  the  claim  on  the  part  of  the  complainants  that  when 
Kingsbury  &  Bennett,  in  January,  1876,  accepted  from  G.  P. 
Kingsbury  a  new  lease,  they  in  contemplation  of  law  surrendered 
the  existing  leases,  and  not  having  asserted  and  exercised  a  right 
to  remove  the  erections  made  previously,  they  thereby  abandoned 
them  to  their  landlord,  and  could  not  assert  or  transfer  to  any 
one  else  the  right  to  remove  them  afterwards.  This  is  the  principal 
question  in  the  case. 

The  right  of  a  tenant  to  remove  the  erections  made  by  him  in 
furtherance  of  the  purpose  for  which  the  premises  were  leased,  is 
conceded.  The  principle  which  permits  it  is  one  of  public  policy, 
and  has  its  foundation  in  the  interest  which  society  has  that  every 
person  shall  be  encouraged  to  make  the  most  beneficial  use  of  his 
property  the  circumstances  will  admit  of.  On  the  other  hand,  the 
requirement  that  the  tenant  shall  remove  during  his  term  whatever 
he  proposes  to  claim  a  right  to  remove  at  all,  is  based  upon  a  cor- 
responding rule  of  public  policy,  for  the  protection  of  the  landlord, 
and  which  is  that  the  tenant  shall  not  be  suffered,  after  he  has 
surrendered  the  premises,  to  enter  upon  the  possession  of  the 
landlord  or  of  a  succeeding  tenant,  to  remove  fixtures,  which  he 
might  and  ought  to  have  taken  away  before.  A  regard  for  the 
succeeding  interests  is  the  only  substantial  reason  for  the  rule 
which  requires  the  tenant  to  remove  his  fixtures  during  the  term : 
indeed,  the  law  does  not  in  strictness  require  of  him  that  he  shall 
remove  them  during  the  term,  but  only  before  he  surrenders  pos- 
session, and  during  the  time  that  he  has  a  right  to  regard  himself 
as  occupying  in  the  character  of  tenant,  Penton  v.  Robart,  2  East, 
88 ;  Weeton  v.  Woodcock,  7  M.  &  W.,  14. 

But  why  the  right  should  be  lost  when  the  tenant,  instead  of 
surrendering  possession,  takes  a  renewal  of  his  lease,  is  not  very 
apparent.    There  is  certainly  no  reason  of  public  policy  to  sustain 


Chattels  Real  59 

such  a  doctrine;  on  the  contrary,  the  reasons  which  saved  to  the 
tenant  his  right  to  the  fixtures  in  the  first  place  are  equally  influ- 
ential to  save  to  him  on  a  renewal  what  was  unquestionably  his 
before.  What  could  possibly  be  more  absurd  than  a  rule  of  law 
which  should  in  effect  say  to  the  tenant  who  is  about  to  obtain  a 
renewal:  '"If  you  will  be  at  the  expense  and  trouble,  and  incur 
the  loss,  of  removing  your  erections  during  the  term,  and  of  after- 
wards brioiging  them  back  again,  they  shall  be  yours;  otherwise 
you  will  be  deemed  to  abandon  them  to  your  landlord." 

There  are  some  authorities  which  lay  down  this  doctrine.  Merritt 
v.  Judd,  14  Cal.  59,  is  directly  in  point.  That  case  is  decided  in 
reliance  upon  previous  decisions  which  do  not  appear  to  us  to 
warrant  it.  Fitzherbert  v.  Shaw,  1  H.  Bl.  258,  was  a  case  in 
which  ejectment  having  been  brought  against  the  tenant,  he 
entered  into  an  agreement  that  judgment  should  be  signed  at  a 
certain  time  with  stay  of  execution  for  a  period;  and  the  decision 
that  the  tenant  could  not  afterwards  remove  fixtures  was  based 
upon  the  agreement.  Lyde  v.  Russell,  1  B.  &  Ad,  394,  only  asserts 
the  general  rule  that  where  the  tenant  surrenders  possession  with- 
out removing  his  fixtures  he  loses  his  right.  Thresher  v.  East 
London,  2  B.  &  C.  608,  was  decided  upon  the  construction  of  a 
covenant  contained  in  the  new  lease,  by  which  the  tenant  under- 
took to  repair  the  erections  and  buildings,  and  at  the  end  of  the 
term  the  premises  so  repaired,  etc.,  to  leave  and  yield  up,  etc. 
Shepard  v.  Spaulding,  4  Met.  416,  has  some  apparent  analogy  to 
the  present  case,  but  it  is  only  apparent.  There  the  tenant  surren- 
dered to  his  landlord  without  removing  the  fixture  in  controversy, 
but  undertook  to  assert  the  right  under  a  lease  made  several  years 
afterwards,  and  which  he  took  when  he  was  as  much  a  stranger  to 
the  premises  as  if  he  had  never  occupied  them.  It  is  manifest  that 
none  of  these  cases  affords  any  support  to  the  conclusion  in  Merritt 
V.  Judd.  And  we  have  been  unable  to  discover  in  London  v.  Piatt, 
34  Conn.  517;  Davis  v.  Moss,  38  Peun.  St.  346,  or  Haflick  v. 
Stober,  11  Ohio  [N.  S.],  482,  to  M'hich  our  attention  is  called  in 
this  case,  anything  important  to  this  discussion. 

The  ease  of  Loughran  v.  Ross,  45  N.  Y.  792,  is  in  accord  with 
the  case  in  California.  In  that  case  Mr.  Justice  Allen,  speaking 
for  the  majority  of  the  court,  says:  "In  reason  and  principle  the 
acceptance  of  a  lease  of  the  premises,  including  the  buildings, 
without  any  reservation  of  right,  or  mention  of  any  claim  to  the 
buildings  and  fixtures,  and  occupation  under  the  new  letting,  are 
equivalent  to  a  surrender  of  the  possession  to  the  landloard  at  the 


60  Cases  on  Personal  Property 

expiration  of  the  first  term.  The  tenant  is  in  under  a  new  tenancy, 
and  not  under  the  old;  and  the  rights  which  existed  under  the 
former  tenancy,  and  which  were  not  claimed  or  exercised,  are 
abandoned  as  effectually  as  if  the  tenant  had  actually  removed 
from  the  premises,  and  after  an  interval  of  time,  shorter  or  longer, 
had  taken  another  lease  and  returned  to  the  premises."  This  is 
perfectly  true  if  the  second  lease  includes  the  buildings ;  but  unless 
it  does  so  in  terms  or  by  necessary  implication,  it  is  begging  the 
whole  question  to  assume  that  the  lease  included  the  buildings  as 
a  part  of  the  realty.  In  our  opinion  it  ought  not  to  be  held  to 
include  them  unless  from  the  lease  itself  an  understanding  to  that 
effect  is  plainly  inferable. 

In  Davis  v.  Moss,  38  Penn.  St.  346,  353,  it  is  said  by  Mr.  Justice 
"Woodward  that  "if  a  tenant  remain  in  possession  after  the  expira- 
tion of  his  term,  and  perform  all  the  conditions  of  the  lease,  it 
amounts  to  a  renewal  of  the  lease  from  year  to  year,  and  I  take 
it  he  would  be  entitled  to  remove  fixtures  during  the  year. ' '  This 
in  our  opinion  is  perfectly  reasonable,  and  it  is  as  applicable  to 
other  tenancies  as  it  is  to  those  from  year  to  year  which  are 
implied  from  mere  permissive  holding  over. 

We  think  the  decree  below  was  correct,  and  it  must  be  affirmed 
with  costs. 

The  other  Justices  concurred.  ^^ 


Vendor  and  Vendee.  " 

OTONGS  V.  ESTES. 
256  III.  553, 100  N.  E.  205,  43  L.  R.  A.  (N.  S.)  675.     1912. 
The  facts  are  stated  in  the  opinion. 

Hand,  J. — This  was  a  bill  in  chancery  filed  by  the  appellant  in 
the  circuit  court  of  Scott  county  to  enjoin  the  appellee  from 
removing  from  a  building  located  upon  certain  real  estate  in  Win- 
chester, in  said  county,  which  the  appellant  had  purchased  at 
master's  sale  in  a  partition  suit,  certain  showcases,  showracks,  and 
other  articles  which  were  attached  to  the  interior  of  said  building, 
and  which  had  been  used  by  the  owner  of  said  premises  in  con- 

12  See  Childs '  Personal  Property,  §  19. 


Chattels  Real  61 

nection  with  the  manufacture  and  sale  of  harness  for  many  years. 
An  answer  and  replication  were  filed,  and  a  hearing  was  had  before 
the  court  upon  oral  testimony  and  testimony  taken  before  the 
master,  and  a  decree  was  entered  dismissing  the  bill  for  want  of 
equity.     The  complainant  has  prosecuted  this  appeal. 

The  record  shows  that  Jesse  Estes,  the  father  of  appellee,  had 
been  engaged  in  the  manufacture  and  sale  of  harness  in  Win- 
chester for  more  than  40  years  prior  to  his  death,  which  occurred 
in  the  year  1909.  His  harness  shop  burned  down  in  the  year 
1898,  and  the  next  year  he  rebuilt  on  the  same  location  a  two- 
story  brick  building,  20x85  feet.  *  *  *  At  the  time  the  new 
building  was  erected  Jesse  Estes  purchased  in  the  city  of  St.  Louis 
three  showcases,  which  were  delivered  to  him  in  Winchester, 
knocked  do^\Ti.  One  was  55  feet  long,  6  feet  wide,  and  12  feet 
high,  had  three  glass  doors,  was  paneled,  and  had  above  the  doors 
glass  transoms,  and  was  fitted  up  on  the  inside  with  hangers  upon 
which  to  hang  harness  for  show  purposes,  and  was  of  sufficient 
size  to  permit  customers  to  go  on  the  inside,  and  pass  from  door 
to  door,  and  out  into  the  show  and  sales  rooms.  The  case  was  placed 
against  the  west  side  of  the  front  room,  the  wall  of  which  consti- 
tuted its  back,  the  floor  its  bottom.,  and  the  ceiling  its  top.  Its 
corner  posts,  which  were  made  of  4-inch  stuff,  extended  from  the 
floor  to  the  ceiling,  and  were  nailed  to  the  ceiling  and  floor  with 
six  or  eight  penny  nails.  The  other  two  cases  were  of  similar 
construction  to  the  large  case,  and  were  4  feet  wide,  8  feet  high, 
and  from  15  to  18  feet  in  length,  and  each  weighed  approximately 
700  pounds.  The"se  cases  stood  in  the  front  room,  against  the  east 
wall,  and  were  used  as  places  in  which  to  show  saddles,  fine 
harness,  and  other  articles  kept  in  the  store  for  sale.  The  cases 
were  all  surrounded  at  the  bottom  by  a  quarter  round  molding, 
which  held  them  snugly  to  the  floor.  Neither  of  the  three  cases 
could  be  removed  from  the  room,  except  by  being  taken  apart. 
There  were  also  two  substantial  racks,  which  were  either  spiked 
or  bolted  to  the  floor  or  walls,  upon  which  to  display  blankets, 
halters,  etc.  There  were  also  two  hangers,  made  of  iron,  which 
were  screwed  into  the  ceiling  joists.  The  cases,  racks,  and  hangers 
are  conceded  to  be  of  the  value  of  $250,  and  could  not  be  removed 
from  the  building  without  marring,  more  or  less,  the  room  in  which 
they  were  located.  Tt  was  averred  in  the  bill  that  the  appellee 
was  insolvent.  The  tools  and  fixtures  in  the  shop  were  appraised 
at  $25,  and  were  locatoti  in  the  rear  room  of  the  building.  The 
tools  and  fixtures  appraised  were  sold  by  the  administratrix  of 


62  Cases  on  Personal,  Property 

Jesse  Estes  to  the  appellee  and  his  brother,  and  upon  the  death 
of  the  brother  were  sold  to  appellee  by  his  administratrix.  After 
the  purchase  of  the  premises  by  the  appellant,  and  the  tools  and 
fixtures  by  the  appellee,  the  appellee  commenced  to  tear  down 
and  remove  the  cases,  racks,  and  hangers  from  the  building,  and 
this  bill  was  filed. 

The  sole  question  to  be  determined  in  this  case  is :  Are  said  cases, 
racks,  and  hangers  fixtures,  and  did  the  title  thereto  pass  to  the 
appellant,  as  real  estate,  at  the  master's  sale?  It  is  generally  held 
that  what  is  annexed  to  the  land  becomes  a  part  of  the  land; 
but  it  is  often  said  it  is  not  always  easy  to  determine  what  con- 
stitutes an  annexation  sufficient  for  such  purpose.  Mr.  Justice 
Breese,  in  discussing  that  question  in  Arnold  v.  Crowder,  81  111. 
56,  on  page  58,  25  Am.  Rep.  260,  said:  "Perhaps  the  true  rule 
is  that  articles  not  otherwise  attached  to  the  land  than  by  their 
own  weight  are  not  to  be  considered  as  part  of  the  land,  unless 
the  circumstances  are  such  as  to  show  that  they  were  intended  to 
be  part  of  the  land,  the  onus  of  showing  they  were  so  intended 
lying  on  those  who  assert  that  they  have  ceased  to  be  chattels ;  and 
that,  on  the  contrary,  an  article  which  is  affixed  to  the  land,  even 
slightly,  is  to  be  considered  as  part  of  the  land,  unless  the  circum- 
stances are  such  as  to  show  that  the  article  was  intended  all  along 
to  continue  a  chattel,  the  onus  similarly  lying  on  those  who  con- 
tend that  it  is  a  chattel."  In  Kelly  v.  Austin,  46  111.  156,  92  Am. 
Dec.  243,  it  was  held  articles  attached  to  the  soil  will  be  considered 
as  a  part  of  the  real  estate,  as  between  an  executor  and  heir  or  a 
vendor  and  vendee,  when,  as  between  landlord  and  tenant,  they 
would  be  considered  as  personal  property;  that  is,  that  the  rule 
as  between  executor  and  heir  and  vendor  and  vendee  is  much 
more  strict  than  between  landlord  and  tenant. 

In  Fifield  v.  Farmers'  Nat.  Bank,  148  111.  163,  at  page  169, 
35  N.  E.  802,  at  page  804  (39  Am.  St.  Rep.  166),  the  following 
rules  taken  from  Ewell  on  Fixtures  for  determining  what  are  to 
be  regarded  as  fixtures,  and  which  would,  as  between  a  mortgagor 
and  mortgagee  and  vendor  and  vendee,  pass  as  a  part  of  the  real 
estate,  were  adopted:  First,  real  or  constructive  annexation  of 
the  thing  in  question  to  the  realty;  second,  appropriation  or  adap- 
tation to  the  use  or  purpose  of  that  part  of  the  realty  with  which 
it  is  connected ;  third,  the  intention  of  the  party  making  the  annexa- 
tion to  make  it  a  permanent  accession  to  the  freehold,  this  inten- 
tion being  inferred  from  the  nature  of  the  article  affixed,  the  rela- 
tion and  situation  of  the  party  making  the  annexation  and  the 


Chattels  Real  63 

policy  of  the  law  in  relation  thereto,  the  structure  and  mode  of 
the  annexation,  and  the  purpose  or  use  for  which  the  annexation 
has  been  made."  And  in  that  case  the  further  quotation  from 
the  same  author  was  made  with  approval,  where  it  was  said :  "Of 
these  tests  the  clear  tendency  of  modern  authority  seems  to  be 
to  give  pre-eminence  to  the  question  of  intention  to  make  the  article 
a  permanent  accession  to  the  freehold,  and  the  others  seem  to 
derive  their  chief  value  as  evidence  of  such  intention. "     *     *     * 

In  the  case  at  bar  all  of  the  articles  sought  to  be  removed  from 
the  building  were  attached,  more  or  less  securely,  to  the  building, 
and  they  were  all  purchased  or  made  for  the  particular  use  to 
which  they  were  appropriated  in  the  building,  and  were  specially 
adapted  to  that  use;  and  it  is  clear,  we  think,  that  it  was  the 
intention  of  Jesse  Estes,  at  the  time  he  attached  the  cases,  racks, 
and  hangers  to  his  building,  that  they  should  permanently  become 
a  part  of  the  building.  Each  of  said  articles  was  specially  adapted 
to  the  use  to  which  it  was  appropriated  in  the  building.  The  party 
making  the  annexation  owned  the  building,  and  used  the  articles 
in  connection  with  the  building  for  something  like  10  years,  and 
when  he  attached  each  of  said  articles  to  his  building  he  obviously 
attached  them  with  the  intention  that  they  should  become  a  per- 
manent part  of  the  building,  and,  had  he  sold  the  premises  without 
any  reservation,  they  would  have  passed  to  his  grantee,  and  the 
same  rule  applied  when  the  premises  were  sold  at  the  master's 
sale.     *     *     * 

"We  are  of  the  opinion  that  the  trial  court  erred  in  holding  that 
appellee  had  the  right  to  remove  the  three  showcases  and  two 
racks  and  the  two  hangers  from  the  building  purchased  by  ap- 
pellant at  the  master's  sale.  The  decree  of  the  circuit  court  will 
be  reversed,  and  the  cause  will  be  remanded  to  that  court,  with 
directions  to  enter  a  decree  in  accordance  with  the  prayer  of  the  bill. 

Reversed  and  remanded,  with  directions.^^ 


Rights  of  Third  Parties. 

FULLER-WARREN  CO.  v.  HARTER. 

110  Wis.  80,  85  N.  W.  698.     1901. 

[This  was  an  action  for  the  wrongful  conversion  of  personal 
property.     In  1894  the  plaintiff  sold  and  delivered  to  Ann   T. 
"See  Childs'  Personal  Property,   §23. 


64  Cases  on  Personal,  Property 

Shurts  a  Fuller  &  Warren  hot-air  furnace  to  be  used  in  heating 
her  dwelling  house.  The  furnace  was  duly  installed  under  a 
guarantee  to  heat  the  house  to  a  specified  degree,  or,  upon 
failure,  the  plaintiff  company  would,  upon  notification,  remedy 
the  condition  or  remove  the  furnace  and  refund  any  money  paid 
thereon.  The  furnace  failed  to  heat  the  house,  whereupon  Mrs. 
Shurts  notified  the  company  to  that  effect  and  refused  to  accept 
or  pay  for  the  furnace.  The  plaintiff  company  attempted  to 
remedy  the  defect  and,  according  to  its  contention,  was  suc- 
cessful. This  Mrs.  Shurts  denied,  and,  after  refusing  to  accept  the 
furnace,  offered  to  return  it,  w^hereupon  the  plaintiff  company 
brought  suit  to  recover  the  purchase  price,  and,  to  that  end,  to 
enforce  a  lien  on  the  ground  that  the  furnace  had  become  a  part 
of  the  realty  to  which  it  was  attached.  Judgment  was  rendered 
in  favor  of  Mrs.  Shurts.  Before  the  furnace  was  installed  there 
was  a  mortgage  placed  on  the  house.  While  the  suit  was  pending 
against  Mrs.  Shurts,  foreclosure  proceedings  were  instituted  under 
the  mortgage  and  the  defendant  Harter  became  the  purchaser  and 
owner  of  the  house.  The  plaintiff  company  now  demanded  the 
furnace  from  Harter  and  Avas  refused,  whereupon  suit  was  brought 
and  judgment  rendered  for  the  plaintiff.    Defendant  appealed.] 

Marshall,  J. — As  between  Mrs.  Shurts  and  respondent,  the 
heating  plant  is  personal  property,  notwithstanding  its  physical 
annexation  to  the  building  it  was  designed  to  heat.  The  plant  was 
not  simply  set  up  in  Mrs.  Shurts'  building  on  trial.  It  was  actually 
sold  and  delivered  to  her  and  placed  in  her  building  to  remain 
there  as  an  improvement  thereof,  subject  to  the  guaranty  of  its 
efBciency.  The  parties  were  competent  to  preserve  its  character 
as  personalty,  between  themselves.  That  does  not  admit  of  a 
question.  Smith  v.  Waggoner,  50  Wis.  155,  6  N,  W.  568;  Fitz- 
gerald V.  Anderson,  81  Wis.  341,  51  N.  W.  554 ;  Keef  e  v.  Furlong, 
96  Wis.  219,  70  N.  W.  1110.  They  accomplished  that,  though  the 
relations  of  vendor  and  vendee  between  them  were  not  severed  by 
resorting  to  the  contract  in  that  regard,  but  by  the  use  by  Mrs. 
Shurts  of  her  remedy  for  the  breach  of  warranty. 

Did  the  heating  plant  become  a  fixture  as  to  the  mortgagee? 
That  is  the  important  question.  That  there  was  an  intent  on  the 
part  of  respondent  and  Mrs.~Shurts  that  it  should  be  incorporated 
into  and  made  a  part  of  the  building,  subject  to  the  right  of  the 
former  to  reclaim  the  same  in  ease  of  inability  to  make  the 
apparatus  do  the  work  guaranteed,  is  unquestioned.  As  before  indi- 
cated, the  contract  of  sale  contemplated  physical  annexation  of 


Chattels  Real  65 

the  plant  to  and  incorporation  of  it  with  the  building  it  was  designed 
to  heat  as  a  permanent  improvement  thereof,  reserving  the  right  to 
remove  it  as  a  mere  security  against  losing  the  property  as  well 
as  the  pay  for  it  if  it  failed  to  satisfy  the  warranty.  All  the  essen- 
tials to  change  the  chattel  character  of  the  property  to  real  estate 
were  satisfied,  viz. :  physical  annexation  of  one  to  the  other,  adapta- 
tion of  the  improvement  to  the  use  to  which  the  realty  was  devoted, 
and  intent  of  the  person  causing  the  annexation  to  make  a  perma- 
nent improvement  of  the  freehold.  Tyler,  Fixt.  114;  Gunderson 
V.  Swarthout,  104  AA^is.  186,  80  N.  W.  465.  The  relations  between 
the  parties  after  the  plant  was  set  up  were  substantially  the  same  as 
they  would  have  been  had  respondent  sold  it  under  an  agreement 
that  the  title  thereto  should  not  pass  to  the  vendee  till  it  was  paid 
for,  and  if  payment  was  not  made  respondent  should  have  the  right 
to  remove  it  from  the  building,  doing  no  more  injury  thereto  than 
necessary.  Counsel  for  appellant  claim  that  personal  property 
incorporated  into  mortgaged  realty  under  such  circumstances,  and 
without  the  mortgagee  being  a  party  to  the  transaction,  becomes 
a  part  of  the  mortgage  security,  and  cite  many  authorities  to  sup- 
port that  view.  Counsel  for  respondent  claim  that  in  such  circum- 
stances, where  the  accession  can  be  severed  from  the  realty  without 
injury  to  the  latter  or  to  the  value  of  the  security  for  the  mortgage 
debt  as  it  stood  before  the  improvement  was  made,  the  same  char- 
acter is  impressed  upon  the  accession  as  between  the  vendor  and  the 
mortgagee  as  between  the  vendor  and  the  mortgagor ;  in  other  words, 
that  it  does  not  become  real  estate,  and  may  be  severed  from  the 
realty  and  removed  without  invading  the  rights  of  the  mortgagee. 
The  learned  trial  court  so  held  and  there  is  ample  authority  to 
support  that  view,  to  some  of  which  counsel  for  respondent  have 
referred  us.  The  difficulty  is  that  there  are  two  well-defined  doc- 
trinas  on  the  subject,  one  being  directly  opposed  to  the  other.  In 
many  jurisdictions  the  doctrine  contended  for  by  appellant's  counsel 
prevails,  and  in  many  others  that  contended  for  by  respondent's 
counsel  prevails.  The  former  view  is  maintained  by  the  following 
of  the  numerous  authorities  that  might  be  cited :  Miller  v.  Walson, 
71  Iowa,  610,  33  N.  W.  128;  Clary  v.  Owen,  15  Gray,  522;  Pierce 
v.  George,  108  Mass.  78 ;  Paper  Co.  v.  Servin,  130  Mass.  511 ;  Bank  v. 
Mason,  147  ]\Iass.  500,  18  N.  E.  406,  7  L.  R.  A.  350.;  Meagher  v. 
Hayes,  152  Mass.  228,  25  N.  E.  105 ;  Engine  Co.  v.  Davis,  5  Iloust. 
192 ;  Hawkins  v.  Hersey,  86  Me.  394,  30  Atl.  14 ;  McFaddcn  v.  Allen, 
134  N.  Y.  489,  32  N.  E.  21,  19  L.  R.  A.  446.  The  latter  view  is  as 
firmly  maintained  by  the  following  of  many  authorities  that  might 
C.  P.  P.— 5 


66  Cases  on  Personal  Property 

be  mentioned :  Campbell  v.  Roddy,  44  N.  J.  Eq.  244,  14  Atl.  279 ; 
Binkley  v.  Forkner,  117  Ind.  185,  19  N.  E.  753,  3  L.  R.  A.  33 ;  Hill 
V.  Sewald,  53  Pa.  271 ;  Crippen  v.  Morrison,  13  Mich.  23,  Belvin  v. 
Paper  Co.,  123  N.  C.  138,  31  S.  E.  655;  Society  v.  Weber,  16  Wash. 
95,  47  Pac.  224,  38  L.  R.  A.  267 ;  Insurance  Co.  v.  George,  77  Minn. 
319,  79  N.  W.  1028,  1064. 

In  Clary  v.  Owen,  supra,  the  Massachusetts  court,  speaking  by 
Mr.  Justice  Hoar,  said:  "We  think  it  is  not  in  the  power  of  the 
mortgagor,  by  any  agreement  made  with  a  third  person  after  the 
execution  of  the  mortgage,  to  give  to  such  person  the  right  to  hold 
anything  to  be  attached  to  the  freehold,  which  as  between  mort- 
gagor and  mortgagee  would  become  a  part  of  the  realty."  *  *  * 
In  Hawkins  v.  Hersey,  the  supreme  court  of  Maine,  speaking  by 
Mr.  Justice  Whitehouse,  said:  "When  machinery  is  sold  and 
placed  in  a  building  for  the  purpose  of  making  it  available  as  a 
manufactory  and  permanently  increasing  its  value  for  occupation, 
an  agreement  between  the  seller  and  buyer  that  the  title  shall 
remain  in  the  former  until  it  is  wholly  paid  for,  will  not  bind  or 
affect  the  mortgagee  of  the  realty  without  notice,  and  such  machin- 
ery will  pass  to  the  mortgagee  as  a  part  of  the  realty." 

On  the  other  hand,  in  Society  v.  Weber,  supra,  the  supreme  court 
of  Washington  said  that  material  sold  and  used  in  the  construction 
of  a  building  located  upon  mortgaged  real  estate,  under  an  agree- 
ment with  the  mortgagor  that  the  seller  shall  retain  the  title  to 
such  material  till  paid  for,  with  the  right  to  remove  the  same  in 
ca.se  of  nonpayment,  does  not  become  a  part  of  the  building  and 
realty  so  that  the  mortgage  lien  will  attach  thereto  as  against  the 
seller,  if  such  material  can  be  removed  from  the  building  without 
injury  thereto.  Similar  language  was  used  by  the  i\Iinnesota  court 
in  Insurance  Co.  v.  George,  supra.  *  *  *  Probably  the  leading 
case  on  the  subject  is  Campbell  v.  Roddy,  supra,  where  the  two  doc- 
trines are  discussed  at  great  length. 

The  rule  that  a  contract  between  a  mortgagor  of  real  estate  and 
his  vendor  of  chattels,  to  be  and  which  are  actually  wrought  into 
such  real  estate  as  an  improvement  thereof,  will  preserve  the  chattel 
character  of  the  accession,  does  not  militate  against  the  mortgage 
attaching  thereto  as  a  part  of  the  security  if  the  mortgagee  is  not 
a  party  to  such  agreem.ent,  is  referred,  for  its  original  support  in 
this  country,  most  generally  to  the  supreme  court  of  Massachusetts, 
and  it  is  sometimes  called  the  Massachusetts  rule.  If  it  applies  to 
this  case,  the  finding  that  it  is  practicable  to  remove  the  heating 


Chattels  Real  67 

plant  from  the  appellant's  building  is  immaterial,  and  the  judgment 
appealed  from  is  wrong. 

It  seems  that  this  court  adopted  the  so-called  Massachusetts  rule 
at  a  very  early  day,  in  Frankland  v.  Moulton,  5  Wis.  1,  where  the 
opinion  was  delivered  by  Chief  Justice  AVhiton,  citing  Winslow  v. 
Insurance  Co.,  4  Mete.  306,  Corliss  v.  McLagin,  29  Me.  115,  and 
Butler  V.  Page,  7  ]\Ietc.  40.  The  circumstances  in  the  Frankland 
case  were  that  machinery  was  sold  to  the  owner  of  the  real  property 
while  it  was  incumbered  by  an  equitable  mortgage,  to  be  attached 
to  such  realty  as  an  improvement  thereof,  the  vendor  of  the 
machinery  retaining  a  chattel  mortgage  interest  therein  to  secure 
the  payment  of  the  purchase  money.  It  was  held  that  the  chattel 
mortgage  was  wholly  inoperative  as  against  the  holder  of  the 
equitable  mortgage;  that  the  agreement  between  the  chattel  mort- 
gagee and  mortgagor,  preser\dng  the  chattel  characte*r  of  the 
machineiy  after  it  was  physically  attached  to  and  had  become  an 
appropriate  improvement  of  the  building  in  which  it  was  located, 
was  effecti\e  only  between  the  parties  to  such  mortgage.  In  Manu- 
facturing Co.  V.  Rundle,  78  Wis.  150,  47  N.  W.  364,  a  chattel 
mortgage  was  taken,  by  the  vendor  of  a  heating  plant  set  up  in  a 
building,  to  secure  the  purchase  money  of  such  plant,  and  it  was  held 
that  the  chattel  mortgage  was  not  effective  to  preserve  the  chattel 
character  of  the  heating  plant  as  against  prior  lien  claims  upon 
the  property.  The  very  opposite  was  held  in  Campbell  v.  Roddy, 
the  leading  New  Jersey  case  to  which  we  have  referred,  where 
several  Massachusetts  cases  that  have  received  the  approval  of  this 
court  were  reviewed  and  rejected  as  unsound.  Frankland  v.  Moul- 
ton, in  principle,  covers  the  whole  subject  under  discussion.  It 
does  not  appear  ever  to  have  been  criticised  here  since  it  was 
decided,  but  hgis  been  repeatedly  approved  as  stating  the  true 
rule.     *     *     * 

The  judicial  policy  for  this  state  having  been  established  for 
nearly  half  a  century,  as  indicated,  it  is  considered  that  we  are  not 
permitted  to  question  it  now.  The  opposite  doctrine  may  be  the 
most  equitable.  It  is  probably  supported  by  the  greater  weight  of 
authority  if  that  is  to  be  determined  by  the  number  of  decisions. 
Possibly  it  may  be  by  the  better  reasoning,  though  the  indications, 
it  is  believed,  from  a  study  of  the  numerous  cases  that  have  dealt 
with  the  subject  in  recent  years,  arc  that  it  has  been  losing  rather 
than  gaining  ground.  The  tendency  of  courts  is  to  fence  it  within 
as  narrow  limits  as  practicable.     *     *     * 

There  appears  to  be  no  legitimate  way  open  to  us  to  decide  other- 


68  Cases  on  Personal.  Property 

wise  than  the  trial  court  adopted  the  wrong  doctrine  in  reach- 
ing a  conclusion  in  this  case.  *  *  *  As  soon  as  the  accession 
to  the  realty  took  place,  the  mortgage  lien  attached  thereto  and 
could  not  thereafter  be  removed  without  either  payment  of  the 
mortgage  or  the  mortgagee's  consent.  The  rule  stated  in  Land 
Co.  V.  Becker,  96  Wis.  206,  71  N.  W.  117,  applies.     *     *     * 

The  judgment  is  reversed  and  the  cause  remanded  with  directions 
to  render  judgment  in  defendant's  favor  for  costs.^* 


Rolling  Stock. 
HOYLE  et  al.  v.  THE  PLATTSBURGH  &  MONTREAL  RY.  CO. 

54  N.  Y.  314, 13  Am.  Rep.  595.     1873. 

This  was  an  action  to  foreclose  two  mortgages  against  the  Platts- 
hurgh  &  Montreal  Ry.  Co. 

The  facts  are  stated  in  the  opinion. 

Johnson,  C. — The  first  question  necessarily  to  be  decided  in  this 
case  is,  whether  the  rolling  stock  of  a  railroad  is  personal  property, 
or  whether  it  is  to  be  deemed  constructively  annexed  to  the  road 
upon  which  it  runs,  so  as  in  law  to  be  regarded  as  part  of  the 
realty.  If  it  be  determined  that  rolling  stock  retains  its  character 
of  personal  property,  then  the  question  arises  whether  a  mortgage 
of  a  railroad  and  its  equipment  needs  to  be  filed  under  the  statute 
of  1833,  requiring  mortgages  of  personal  property  to  be  filed  when 
the  possession  of  the  property  is  not  immediately  delivered  to  the 
mortgagee.  (Laws  of  1833,  Chap.  279,  P.  402.)  The  questions 
thus  presented  are  not  authoritatively  determined  in  this  State. 
The  opinion  of  the  Supreme  Court  has  been  given  in  four  reported 
cases.  The  earliest  was  that  of  The  Farmers'  Loan  and  Trust  Co.  v. 
Hendrickson  (25  Barb.,  484),  in  which  the  judgment  rendered  in 
October,  1857,  by  Justices  S.  B.  Strong,  Eldredge  and  Davies, 
declared  that  as  between  mortgagees  and  judgment  creditors  the 
rolling  stock  was  to  be  deemed  fixtures,  and  consequently  that  such 
a  mortgage  did  not  need  to  be  filed  under  the  act  of  1833.  In  this 
case  the  mortgage  specified  engines,  tenders,  cars,  etc.,  as  part  of 

14  See  Childs '  Personal   Property,   §  23. 


Chattels  Real.  69 

the  property  mortgaged,  and  the  rights  of  the  plaintiffs  might 
have  been  sustained  by  holding  either  that  the  chattel  mortgage 
law  did  not  apply  to  railroad  mortgages,  or  that  engines  and  cars 
were  fixtures.  The  court  rejected  the  former  ground  and  placed 
the  decision  on  the  position  that  the  rolling  stock  was  part  of 
the  realty. 

In  Stevens  v.  The  Buffalo  &  N.  Y.  C.  R.  R.  (31  Barb.,  590), 
decided  in  September,  1858,  Justices  Greene,  Grover,  and  Marvin 
held  that  rolling  stock  was  personalty,  and  that  a  mortgage  thereof 
was  required  to  be  filed  under  the  act  of  1833.  Elaborate  opinions 
were  written  in  support  of  these  conclusions,  in  which  the  Hend- 
rickson  case,  before  cited,  and  that  of  Coe  v.  Hart,  in  the  United 
States  Circuit  Court,  before  Mr.  Justice  McLean,  that  of  Corey  v. 
The  Pittsburgh  &  F.  W.  R.  Co.  and  Mitchell  v.  Winslow  (2  Story, 
690)  were  examined  with  the  result  before  mentioned. 

In  December,  1859,  Mr.  Justice  Allen  decided  (Beardsley  v. 
Ontario  Bank,  31  Barb.,  619)  the  mortgage  was  of  the  railroad, 
real  estate,  chattels  and  franchises  of  the  corporation.  It  was  held 
that  the  rolling  stock  was  not  covered  by  the  mortgage,  not  being 
part  of  the  realty.  The  last  two  decisions  were  acquiesced  in ;  the 
first,  the  case  of  Hendrickson,  was  taken  to  the  Court  of  Appeals 
in  1863,  and  resulted  in  an  order  for  reargument,  and  subsequently 
the  case  was  settled.  The  case  now  under  consideration  is  reported 
in  47  Barb.,  109,  before  Justice  Sutherland,  at  Special  Term  in 
1867.  He  held  that  rolling  stock  does  not  become  part  of  the  realty, 
and  that  it  passed  >by  the  two  mortgages  in  question,  as  specially 
named,  and  not  as  part  of  the  realty.  *  *  *  At  General  Term 
the  case  came  before  Justices  Ingraham,  Sutherland  and  G.  G. 
Barnard,  and  the  decision  appealed  from  was  affirmed,  Judge 
Ingraham  giving  the  only  opinion.  After  declaring  himself  not 
prepared  to  accede  to  the  opinion  at  Special  Term,  that  rolling 
stock  is  in  all  cases  to  be  considered  as  personal  property,  he  holds 
that  the  intent  of  the  parties  is  evident  that  the  rolling  stock  should 
pass  as  part  of  the  realty,  and  that  such  a  construction  should  be 
given  to  the  transaction. 

In  respect  to  the  legal  methods  of  disposition,  all  property  is 
distributed  by  law  under  the  head  either  of  real  or  personal;  and 
in  order  effectually  to  be  disposed  of,  the  act  of  disposition  must 
conform  to  the  mode  appropriate  to  the  kind  of  property.  In 
regard  to  realty,  a  conveyance  by  metes  and  bounds  of  a  parcel 
of  land  carries  with  it  everything  which  the  law  recognizes  as  part 
of  the  realty,  whether  it  was  originally  personal  in  its  nature  or 


70  Cases  on  Personal.  Property 

not,  as  fully  and  completely  as  by  the  most  minute  enumeration 
and  specification.  It  draws  to  itself  and  binds  everything 
afterward  made  part  of  the  land  by  any  method  of  annexa- 
tion or  affixing  which  the  law  recognizes  as  effectual,  whether  actual 
or  constructive  in  character.  (Murdock  v.  Gifford,  18  N.  Y.,  30; 
Mott  v.  Palmer,  1  Comst.,  564;  Leroy  v.  Piatt,  4  Paige.  77.) 

In  view  of  these  well  settled  and  universally  recognized  rules, 
the  cases — such  as  Prim  v.  Emery  (32  N.  Hamp.,  484),  and  Pin- 
nock  V.  Coe  (23  How.,  117),  which,  as  well  on  grounds  of  reason 
as  authority,  labor  to  maintain  that  after-acquired  rolling  stock 
is  bound  by  a  previous  mortgage,  that  in  terms  is  declared  to  bind 
such  after-acquired  property — point  irresistibly  to  the  conviction 
that  rolling  stock  is  not  part  of  the  realty.  No  one  ever  doubted 
that  a  mortgage  of  land  bound  a  house  subsequently  built  upon  it ; 
nor  that  it  bound  anything  originally  personal  which  became  after- 
ward part  of  the  land.  The  labored  attempt  to  prove  that  rolling 
stock,  acquired  after  the  date  of  the  mortgage,  will  be  bound  by 
it,  shows  how  strongly  the  incongruity  is  perceived  of  treating  it 
as  part  of  the  realty. 

The  general  doctrine  is,  that  things  originally  personal  in  their 
nature  remain  personal,  though  used  in  connection  with  land.  All 
the  implements  of  agriculture  have  their  use  only  in  the  cultiva- 
tion of  land;  and  yet  they  are  never  thought  to  be  part  of  the 
realty.  Some  element  of  annexation,  usually  physical  in  its  char- 
acter, is  the  common  criterion  for  determining  whether  things 
personal  in  their  origin  have  lost  that  quality  and  become  part  of 
the  realty.  Generally,  the  connection  is  appreciable  by  the  senses ; 
so  that  what  belongs  to  the  land  and  what  is  personal  may  be 
determined  by  the  inspection  alone.  Cases  of  constructive  annexa- 
tion are  few,  and  act  upon  peculiar  and  obvious  reasons  of  their 
own.  Looking  now  at  the  rolling  stock  of  a  railroad,  it  is  originally 
personal  in  its  character,  it  is  subservient  to  a  mere  personal  trade, 
the  transportation  of  freight  and  passengers.  The  track  exists  for 
the  use  of  the  cars  rather  than  the  cars  for  the  use  of  the  track. 
There  is  no  annexation,  no  immobility  from  weight,  there  is  no 
localization  in  use.  The  only  element  on  which  an  argument  can 
be  based  to  support  the  character  of  realty  is  adaptation  to  use, 
with  and  upon  the  track.  Even  in  respect  to  this,  were  the  same 
contrivance  adopted  by  a  tenant  for  use  in  his  trade  upon  leased 
lands,  his  right  to  remove  both  cars  and  track  would  be  beyond 
question.  It  is  perhaps  fortunate  that  this  question  was  not  finally 
adjudicated  in  the  early  days  of  railroad  enterprise,  for  then  unity 


Chattels  Real  71 

of  ownership  in  track  and  cars  and  independence  of  roads  upon 
each  other  seemed  to  render  it  possible  to  consider  rolling  stock 
part  of  the  realty  without  introducing  great  inconvenience.  At 
the  present  time  independent  companies  exist,  owning  no  tracks, 
whose  trains  run  through  State  after  State  on  the  railroad  track 
of  other  companies.  It  is  no  uncommon  sight  to  see  the  cars  of 
half  a  dozen  companies  formed  into  a  single  train  and  running 
from  New  York  to  Illinois  and  Missouri.  It  is  impossible  to  deal 
with  such  property  as  part  of  the  realty  without  introducing 
anomalies  and  uncertainties  of  the  gravest  character.  *  *  * 
The  difficulties  which  follow  on  admitting  that  rolling  stock  can  be 
part  of  the  realty  are  partly  disclosed  in  Minnehaha  Co.  v.  St.  Paul 
Co.  (2  Wall,  609.)  *  *  *  But  upon  examining  the  case  it  will 
be  found  that  it  was  so  decided  by  the  District  Court  in  another 
suit,  the  decree  in  which  bound  the  parties  then  before  the  court, 
and  concluded  them  that  the  question  spoken  of  could  not  be  adju- 
dicated (P.  636).  To  this  judgment  thereof  the  justices  dissent, 
and  in  expressing  their  views  say,  "We  agree  that  the  rolling  stock 
upon  this  road  covered  by  the  several  mortgages,  and  as  respects 
any  other  valid  liens  upon  the  same,  is  inseparably  connected  with 
the  road ;  in  other  words,  is,  in  technical  language,  a  fixture  to  the 
road,  so  far  as  in  its  nature  and  use  it  can  be  called  a  fixture." 
But  it  is  a  fixture  extending  over  the  entire  track  of  the  road.  It 
is  not  a  fixture  upon  any  particular  division  or  portion,  but  attaches 
to  every  part  or  portion. 

While  I  can  see  that  views  like  these  are  accommodated  to  rail- 
roads in  the  character  of  mortgagors  in  their  relation  with  the 
holders  of  their  bonds,  they  cannot  be  allowed  to  prevail  without 
introducing  inextricable  confusion  and  uncertainty  in  respect  to 
the  laws  of  taxation  and  of  judgment  liens,  and  great  embarrass- 
ment in  dealing  in  respect  to  this  class  of  property.  It  is  vastly 
better  that  changes  of  this  sort,  if  thought  to  be  needed,  should 
be  introduced  by  legislation.  In  my  judgment,  the  want  of  the 
element  of  localization  in  use  is  a  controlling  and  conclusive  reason 
why  the  character  of  realty  should  not  be  given  to  rolling  stock 
of  a  railroad.  For  want  of  that  element,  rolling  stock  cannot  be 
subjected  to  the  laws  regulating  taxation  and  liens  on  real 
property.^  ^ 

isRce  Winmms  v.  Tho  New  Jersey  Southern  Hy.  Co.,  28  N.  .Tcr.  Eq.  277 
(1877),  where  it  is  argued  that  roliing  stofk  is  realty.  8ce  same  case,  29 
N.  Jer.  Eq.  311  (1878),  where  it  is  decided  that  rolling  "stock  is  personalty. 


V 


72    \"  X  Cases  on  Personal  Property    y 

r     A^     1.^  Emblements — Nature  of. 

.\^      /^/      BAGLEY  V.   COLUMBUS   SOUTHERN   RY.   CO. 
(jy  98  Ga.  626,  25  8.  E.  638,  34  L.  R.  A.  286.     1896. 

The  facts  are  stated  in  the  opinion, 

Simmons,  C.  J. — 1.  Under  the  constitution  of  1877,  the  juris- 
diction of  a  justice's  court  over  actions  arising  ex  delicto  is  con- 
fined to  "cases  of  injuries  or  damages  to  personal  property." 
*  *  *  It  follows  that  a  justice's  court  has  no  jurisdiction  of  a 
case  in  which  the  plaintiff  seeks  to  recover  damages  for  an  injury 
to  realty  caused  by  the  wrongful  act  of  the  defendant. 

In  the  present  case,  which  was  commenced  in  a  justice's  court, 
the  plaintiff  alleged  that  the  defendant  railway  company  "did 
carelessly  set  fire  to  and  destroy  and  burn  a  certain  cow  pasture, 
and  about  300  yards  of  fencing,  and  about  one-half  acre  of  cotton 
growing  in  the  field,  the  property  of  complainant,  and  all  of  the 
value  of  $25."  "Whether  the  magistrate  had  jurisdiction  to  enter- 
tain the  suit  must  depend,  therefore,  upon  whether  the  property 
alleged  to  have  been  thus  destroyed  is  legally  to  be  considered  and 
characterized  as  personalty  or  as  realty. 

The  burning  of  the  plaintiff's  "cow  pasture"  can  scarcely  be 
regarded  as  anything  less  than  an  injury  to  realty.  Indeed,  to 
characterize  such  an  injury  merely  as  damage  to  personalty  would 
appear  to  be  a  euphemism  unwarranted  under  the  strict  rules  of 
law.  If  the  plaintiff  really  intended  to  aver  that  the  grass  or 
other  natural  herbage  growing  upon  his  pasture  lands  was  destroyed 
by  fire,  still  such  damage  is  to  be  legally  considered  as  an  injury 
to  realty.  "Growing  crops,  if  fructus  naturales,  are  part  of  the 
soil  before  severance."  4  Am.  &  Eng.  Enc.  Law,  894.  "It  is 
generally  held  that  growing  trees,  fruit,  and  grass  are  parcel  of 
the  land."  Tyler,  Fixt,  735.  As  we  shall  hereinafter  more  fully 
discuss  the  nature  of  growing  crops  and  their  legal  status,  we 
may  dismiss  for  the  present  further  consideration  of  the  plaintiff's 
claim  of  injury  to  his  pasture,  and  pass  to  a  discussion  of  the 
character  of  the  damage  he  sustained  by  reason  of  the  burning  of 
his  fences. 

"A  fence  is  generally  considered  to  be  a  part  of  the  realty." 
7  Am.  &  Eng.  Enc.  Law,  905,  906,  citing  cases.  And,  to  the  same 
effect,  see  Tyler,  Fixt.  116,  132,  133.     Certainly,  where  the  owner 


%.  Chattels  Real  73 

of  land  builds  or  maintains  thereon  a  substantial  fence,  as  a  perma- 
nent structure,  constituting  an  improvement  of  the  premises,  such 
fence  becomes  as  much  an  integral  part  of  the  realty  as  would  a 
house  or  brick  wall  erected  thereon.  *  *  *  So,  the  burning 
of  the  plaintiff's  fences  is  likewise  to  be  regarded  as  damage  to 
realty. 

Our  main  difficulty  in  disposing  of  the  question  of  jurisdiction 
raised  in  this  case  has  been  to  properly  determine  the  legal  character 
of  the  third  item  of  damage  claimed  by  the  plaintiff,  arising  out 
of  the  destruction  of  unmatured  cotton  growing  in  his  field.  Many 
of  the  modern  text-books  and  numerous  adjudicated  cases  have 
been  adverted  to  during  the  course  of  our  investigation,  but  vnth 
a  result  tending  rather  to  confusion  than  practical  aid,  so  far  as 
concerns  a  correct  determination  of  the  question  whether,  at  com- 
mon law,  growing  crops  were  characterized  as  personal  or  as  real 
property.  For  instance,  Mr.  Freeman  says:  "Crops,  whether 
growing  or  standing  in  the  field  ready  to  be  harvested,  are,  when 
produced  by  annual  cultivation,  no  part  of  the  realty."  1  Freem. 
Ex'ns,  §  113.  And,  in  support  of  his  text,  he  cites  cases  to  show 
that  unmatured  crops  are  * '  liable  to  voluntary  transfer  as  chattels, ' ' 
"may  be  seized  and  sold  under  execution,"  and  pass  "to  the  execu- 
tor or  administrator  of  the  occupier  [of  the  land],  if  he  die  before 
he  has  actually  cut,  reaped,  or  gathered  the  same. ' '  On  the  other 
hand,  it  is  broadly  stated  in  the  American  &  English  Encyelopedia 
of  Law  (volume  4,  p.  887)  that  "growing  crops,  before  maturity, 
and  unsevered  from  the  soil,  are  part  and  parcel  of  the  land  on 
which  they  grow,  and  pass  with  a  conveyance  of  the  land."  Cases 
almost  innumerable  are  cited  as  showing  that  this  rule  obtains  in 
nearly  every  state  in  the  Union.  This  text  is  then  immediately 
followed  by  the  statement  (page  891)  that  "crops  ripe  for  harvest 
are  personal  property.  They  pass  to  the  executor,  and  not  to  the 
heir.  They  are  liable  to  be  seized  on  execution,  and  the  officer  may 
enter,  cut  down,  seize,  and  sell  the  same  as  other  personal  estate." 
On  the  succeeding  page  it  is  said:  "Although  growing  crops  are 
part  of  the  realty,  unless  severed  from  the  soil,  yet,  for  the  purpose 
of  levy  and  sale  on  execution,  they  are  suffered  to  be  treated  as 
personalty."  Again,  we  find  it  stated  in  6  Lawson,  Rights,  Rem.  & 
Prac.  §2681,  that  "crops,  until  they  are  gathered,  are  things 
immovable,  or  real  estate,  because  they  are  attached  to  the  gi'ound ;" 
but,  when  "crops  arc  gathered,  they  become  movable  or  cliattols 
personal,  because  they  are  no  longer  attached  to  the  soil.  *  *  * 
Corn,  ripe,  but  standing  um.ut  in  the  field,  passes  by  deed  of  the 


74  Cases  on  Personal.  Property 

freehold.  Unharvested  crops  go  to  the  devisee  of  the  land,  and  not 
to  the  executor;  but,  as  against  the  heirs  at  law,  they  go  to  the 
executor."  This  statement  is  met  by  the  assertion  to  be  found  in 
3  Ballard,  Real  Prop.  §  128,  that  "annual  crops  sown  by  the  owner 
of  the  soil  or  by  his  tenant,  and  which  are  the  produce  of  industry 
and  care  while  growing  and  immatured,  are  personal  property;" 
whereas  in  the  first  volume  of  the  same  work  (section  111)  it  is  said 
that,  "as  a  general  rule,  growing  crops,  which  have  been  planted 
by  the  owner  of  the  soil,  constitute  a  part  of  the  realty;  but  this 
rule  is  held  not  to  apply  to  crops  which  have  matured  and  are 
ready  to  be  harvested. ' '  Mr.  Kerr  says :  ' '  Growing  crops  planted 
by  the  owmer  of  the  soil  are  a  part  of  the  realty,  and,  as  a  general 
rule,  will  pass  with  it  on  conveyance.  *  *  *  And  this  seems 
to  be  the  ease  even  though  the  crops  are  at  the  time  standing  in 
the  field  unharvested,  although  ripe,  and  the  season  for  gathering 
them  is  long  past.  *  *  *  It  is  the  general  rule  that  a  crop 
growing  on  land  at  the  time  of  a  sale  under  execution  passes  to 
the  purchaser ;  and  the  same  is  true  on  a  sale  under  a  mortgage 
foreclosure.  *  *  *  And  growing  crops  are  a  part  of  the  realty 
as  between  the  successful  plaintiff  in  an  action  of  ejectment  and 
the  evicted  defendant,  where  the  crops  were  planted  after  the  com- 
mencement of  the  action  in  ejectment.  But  the  rule  is  otherwise 
where  the  grain  was  sown  and  harvested  by  one  on  lands  to  which 
he  claim.ed  title,  and  of  which  he  was  in  actual  possession.  Crops 
planted  by  a  tenant  who  holds  under  the  owner  of  the  soil  are, 
as  between  the  landlord  and  his  tenant,  personal  property;  and 
the  tenant  has  the  right  to  remove  them.  They  become  part  of  the 
realty,  however,  should  the  tenant  voluntarily  abandon  or  forfeit 
possession  of  the  premises. ' '  1  Kerr,  Real  Prop.  §  §  50,  51. 
*  *  *  In  Preston  v.  Ryan,  45  Mich.  174,  7  N.  W.  820,  Justice 
Cooley  said:  "While  it  is  quite  true  that  the  growing  crops  are 
a  part  of  the  realty,  yet,  for  the  purposes  of  levy  and  sale  on 
execution,  they  are  suffered  to  be  treated  as  personalty."  And 
there  are  numerous  cases  in  which  it  has  been  held  that  where  the 
owner  of  crops  has  undertaken  to  sell  the  same  at  private  sale, 
before  they  matured,  or  while  ripe,  though  ungathered,  such  crops, 
if  gi'ain  or  other  agricultural  produce  raised  annually,  are  to  be 
treated  as  personalty  for  the  purposes  of  such  sale.  The  question 
as  to  whether  such  crops  were  personalty  or  realty  arose  in  con- 
sidering the  effect  of  the  statute  of  frauds  upon  sales  of  this  char- 
acter. These  decisions  were  confined,  however,  to  sales  of  such 
crops  only  as  were  termed  "emblements"  at  common  law.     Clark, 


Chattels  Real  75 

Cont.  106,  Says  Mr.  Kerr,  in  dealing  with  this  subject:  "  A  dis- 
tinction is  to  be  observed  between  '  fructus  naturales, '  or  the  natural 
growths  of  the  soil,  such  as  trees,  grasses,  herbs,  fi*uit  on  trees  and 
the  like,  which  at  common  law  are  part  of  the  soil,  and  'fructus 
industriales, '  or  fruits  or  products  the  result  of  the  annual  labor 
of  man  in  sowing  and  reaping,  planting  and  gathering,  which, 
though  strictly  a  part  of  the  realty,  as  much  as  those  products 
which  the  soil  brings  forth  without  man's  intervention,  are  treated 
as  personal  property  for  many  purposes."  1  Kerr,  Real  Prop. 
§50.     *     *     * 

Any  one  wishing  to  further  entangle  himself  in  the  mystic  maze 
of  uncertainty  and  contradiction  in  which  the  law  governing  grow- 
ing crops  has  become  involved  may  profitably  direct  his  attention 
to  the  legion  of  cases  cited  by  the  various  text  writers  to  whom  we 
have  above  referred.  *  *  *  Indeed,  we  are  free  to  confess 
that  about  the  only  deduction  we  have  been  able  to  draw  therefrom 
is  that  a  growing  crop  is  a  sort  of  legal  species  of  chameleon,  con- 
stantly changing  color  to  meet  the  emergency  of  each  peculiar 
class  of  cases  in  which  the  question  arises  whether  it  is  to  be  con- 
sidered as  personalty  or  as  realty.     *     *     * 

"We  may  at  the  outset  remark  that,  in  our  opinion,  growing 
crops,  before  actual  severance  from  the  soil,  were  consistently 
regarded  at  common  law  as  realty.  "Whatever  incongruities  may 
have  crept  into  the  law  upon  the  subject  as  now  understood  in 
many  jurisdictions  we  believe  attributable  alone  to  a  misconcep- 
tion on  the  part  of  courts  of  the  present  day  of  the  rules  which 
governed  this  species  of  property  under  the  feudal  system  prevail- 
ing in  England  at  an  early  period  of  its  history.  *  *  *  Black- 
stone  tells  us  that  in  feudal  times,  when  a  common  recovery 
suffered  by  the  tenant  of  the  freehold  had  the  effect  of  annihilating 
all  leases  for  years  then  subsisting,  estates  for  years  were  necessarily 
of  a  precarious  nature,  and  of  short  duration.  2  Bl.  Comm.  143. 
The  hardship  attending  a  thus  sudden  termination  of  the  lessee's 
estate  before  he  could  reap  the  fruits  of  his  toil,  by  gathering  his 
crops,  appealed  strongly  for  his  protection.  Relief  was  justly 
afforded  by  the  courts  upon  the  doctrine  of  emblements,  designed 
to  meet  an  emergency  thus  occasioned,  whereby  the  tenant  for  years 
was  given  a  right  to  gather  that  which  he  had  in  good  faith  phuited. 
Not  so,  however,  if  a  tenant  whose  term  was  certain  sowed  a  crop  he 
could  not  reasonably  expect  to  be  able  to  harvest  before  his  term 
expired,  or  by  his  own  act  terminated  his  estate  before  his  crops 
were  matured  and  gathered, — in  the  one  ca.se,  because  "it  was  his 


76  Cases  on  Personal  Property 

own  folly  to  sow  what  he  could  never  reap  the  profits  of;"  and, 
in  the  other  case,  because  his  estate  terminated  by  reason  of  his 
own  default  or  caprice.  2  Bl.  Comm.  145.  *  *  *  The  doctrine 
of  emblements  is  based,  and  proceeds  solely,  on  the  idea  that  the 
tenant  is  justly  entitled  to  gather  his  crops,  even  though  his  term 
lias  expired,  and  without  regard  to  whether  such  crops  are  to  be 
considered  as  in  the  nature  of  personalty  or  realty.  Nor  is  the  fact 
that  at  common  law  the  executor  of  a  deceased  tenant  was  entitled 
to  claim  emblements  any  test  as  to  the  legal  character  of  such  crops 
while  yet  standing  in  the  field.  Here  w^e  disagree  with  the  con- 
clusion drawn  by  Mr.  Freeman  and  other  writers.  Formerly,  under 
the  common-law  rules  of  succession,  the  title  to  crops  unsevered 
from  the  soil  could  not  pass  into  the  executor.  Under  the  doctrine 
of  emblements,  however,  he  was  given  the  right  to  enter  upon  the 
land,  in  the  name  of  the  deceased  tenant,  and  convert  the  crops 
into  personalty,  by  gathering  the  same  and  carrying  them  away, 
whereby  the  rules  of  succession  governing  personalty  were  given 
opportunity  to  ultimately  take  effect  upon  this  species  of  property. 

*  *  *  In  fact,  the  doctrine  of  emblements  was  designed  for 
the  very  purpose  of  effecting  such  a  separation,  and  declaring 
emblements  "distinct"  from  the  "real  estate  in  the  land,"  no 
matter  in  whom  such  estate  vested  by  reason  of  the  sudden  expira- 
tion of  the  tenant's  term.  It  will  be  noted  that  Blackstone  does 
not  say  that  growing  crops  are  distinct  from  the  land  upon  which 
they  are  grown,  but  only  that  they  are  so  after  they  become 
"emblements."  Of  course,  where  the  doctrine  of  emblements  has 
no  application,  growdng  crops  cannot  be  considered  as  "emble- 
ments" at  all.  As,  for  instance,  when,  at  the  present  day,  the 
owner  of  lands  in  fee  simple  has  an  unqualified  and  exclusive 
interest  therein,  himself  plants  the  crops,  and  remains  in  undis- 
turbed possession  of  the  premises,  no  such  distinction  between  the 
land  and  unharvested  crops  growing  thereon  is  properly  to  be 
observed.  Thus,  it  is  the  almost  universal  rule  in  this  country'  that 
where  such  owner  voluntarily  sells  his  lands,  without  expressly 
reserving  a  right  to  enter  and  gather  growing  crops  planted  thereon, 
such  crops  are  to  be  regarded  as  realty,  and,  as  such,  pass  to  the 
purchaser.  See  the  collection  of  cases  cited  in  4  Am.  &  Eng.  Ene. 
Law,  887. 

It  will  further  be  observed  that  Blackstone  seems  very  studiously 
to  avoid  characterizing  even  "emblements"  as  personalty,  but 
very  happily,  we  think,  remarks,  instead,  that  they  are  "subject 
to  many,  though  not  all,  the  incidents  attending  personal  chattels." 


Chattels  Real  ^^ 

And  herein  we  believe  he  has  struck  the  keynote  explaining  how, 
in  later  times,  growing  crops  have  come  to  be  considered  personalty, 
simply  because,  the  law  having  placed  upon  them  many  incidents 
common  alike  to  chattels,  no  reason  ordinarily  exists  for  obsei-ving 
their  true  status  as  realty;  and  therefore  the  distinction  which 
really  still  survives  between  them  and  mere  chattels  has  not  been 
clearly  and  consistently  kept  in  view.     *     *     * 

We  cannot  refrain  from  remarking  the  embarrassment  we  have 
experienced  arising  out  of  the  practice,  which  seems  to  have  sprung 
up  in  some  jurisdictions,  of  arbitrarily  regarding  growing  crops 
as  personalty  for  one  pui*pose,  and  as  realty  for  another.  In  the 
very  nature  of  things,  this  species  of  property,  being  tangible  in 
form,  and  possessing  many  marked  inherent  characteristics,  is 
capable  of  being  properly  classified,  and  should  be  given  a  fixed 
legal  status.  *  *  *  The  justice  of  this  critical  observation  is 
evidenced  by  the  utter  confusion  in  which  we  find  the  law  upon  the 
subject  wuth  which  we  are  now  dealing  to  be  involved. 

That  growing  crops  cannot  properly  be  "treated"  as  personalty 
under  the  law  as  understood  in  this  state  seems  indisputable,  in 
view  of  the  definition  of  "realty"  contained  in  section  2218  of  the 
Code,  which  purports  to  be  declaratory  of  the  common  law,  and 
which  reads  as  follows:  "Realty,  or  real  estate,  includes  all  lands 
and  the  buildings  thereon,  and  all  things  permanently  attached  to 
either,  or  any  interest  therein  or  issuing  out  of,  or  dependent 
thereon."  Following  this  definition,  it  Avas  held  in  Coody  v. 
Lumber  Co.  82  Ga.  793,  10  S.  E.  220,  that  "trees  growing  upon 
land  constitute  part  of  the  realty ;  and  a  sale  of  them,  under  the 
statute  of  fraud.s,  must  be  in  writing."  And  in  Frost  v.  Render, 
65  Ga.  15,  wherein  it  appeared  that  a  sheriff  sold,  under  execution, 
land  upon  which  was  growing  a  crop  of  cotton,  it  was  held  that, 
"a  levy  being  on  certain  land  as  the  property  of  the  defendant  in 
fi.  fa.,  a  sale  under  such  levy  carries  with  it  the  crop  growing  on 
the  land,  and  the  sheriff  cannot  limit  the  sale  by  an  announcement 
that  the  rent  of  the  current  year  is  reserved;"  for  the  reason  that 
the  law  considers  growing  crops  part  and  parcel  of  the  land  itself, 
following  its  ownership  as  a  mere  element  of  value  incident  thereto. 
This  is  certainly  the  general  rule  which  obtains  in  this  state,  and 
we  know  of  no  exceptions  thereto  which  have  gained  any  foothold 
in  our  law  on  the  subject.  *  *  *  That  the  proper  result  in 
this  particular  case  has  been  reached  we  are  entirely  convinced, 
and  cannot  regard  as  even  debatable.  The  plaintiff  was  the  owner, 
not  only  of  the  crop  destroyed,  but  also  of  the  land  upon  whioh  it 


78  Cases  on  Personal  Property 

was  growing.  His  crop,  therefore,  cannot  possibly  fall  within  the 
term  "emblements,"  nor  properly  be  considered  as  even  con- 
structively constituting  a  species  of  property  distinct  from  the  land 
upon  which  it  was  growing  at  the  time  it  was  destroyed  by  fire. 

Our  conclusion,  therefore,  is  that  the  justice's  court  had  no 
jurisdiction  to  entertain  the  plaintiff's  action.  *  *  *  After 
deliberate  reflection,  and  after  a  most  painstaking  investigation  of 
the  law,  we  are  constrained  to  hold  that  the  recovery  of  six  dollars, 
which  the  plaintiff  obtained  in  the  magistrate 's  court,  cannot  legally 
be  upheld. 

Judgment  affirmed. 

Atkinson,  J.,  providentially  absent,  and  not  presiding.^ *^ 


Fructus  Naturales.  A- 

In  re  CHAMBERLAIN. 
140  N.  Y.  390,  35  N.  E.  602.     1893. 
The  facts  are  stated  in  the  opinion. 

Andrews,  C.  J. — ^We  think  the  surrogate  erred  in  charging  the 
executrix  with  the  sum  of  $173.29,  the  amount  received  by  her 
for  hay  grown  upon  the  farm  in  1889.  The  testator  died  in  June 
of  that  year,  and  the  tenant  of  the  farm,  who  worked  it  upon  shares, 
cut  the  grass  thereafter,  and  paid  over  to  the  executrix  that  sum 
as  her  share  of  the  proceeds  of  the  hay  under  the  agreement  with 
the  testator.  The  executrix  was  devisee  for  life  of  the  farm.  Grow- 
ing grass  partakes  of  the  nature  of  realty.  Neither  at  common 
law  nor  under  our  statute  does  it  go  as  assets  to  the  executor  or 
administrator,  but  follows  the  land,  and  belongs  to  the  heir  or 
devisee.  Evans  v.  Roberts,  5  Barn.  &  C.  829;  Kain  v.  Fisher,  6 
N.  Y.  597 ;  2  Rev.  St.  p.  82,  §  6,  subd.  6.  On  the  other  hand,  corn 
and  other  annual  crops  produced  by  care  and  cultivation,  and 
not  growing  spontaneously,  are  at  common  law,  as  between  heir 
and  executor  or  administrator,  treated  as  chattels,  and  under  our 
statute  are  assets  for  the  payment  of  debts,  even  as  against  the 
devisee.    1  Williams,  Ex'rs,  p.  70;  2  Rev.  St.  p.  82,  §  6,  subd.  5; 

16  See  Childs'  Personal  Property,  §§  27,  28. 


Chattels  Real-  79 

Stall  V.  "Wilbur,  77  N.  Y.  158.  It  must  be  assumed,  m  the  absence 
of  evidence,  that  the  executrix  took  the  proceeds  of  the  hay  in 
the  character  of  life  tenant,  and  not  as  executrix.  There  was  no 
change  in  the  legal  character  of  the  grass  by  any  act  or  contract  of 
the  testator  in  his  lifetime.  His  share  in  the  proceeds  of  the  grass 
was  in  the  nature  of  rent  reserved,  which  accrued  after  the  testator's 
death.  The  decree  should  therefore  be  modified  by  deducting  from 
the  amount  charged  against  the  executrix  the  sum  of  $173.29,  and 
any  interest  which  may  have  been  allowed  thereon. 

The  judgment  below  should  be  modified  in  conformity  with  this 
opinion,  and  as  modified  affiraied,  without  costs  to  either  party. 
All  concur.    Judgment  accordingly.^'^ 


Who  Entitled  to  Emblements. 

Grantor  and  Grantee.  -J 

TRIPP  v.  HASCEIG. 
20  Mich.  254.     1870. 
The  facts  are  stated  in  the  opinion. 

Graves,  J. — The  plaintiff  in  error  sued  Hasceig  for  the  alleged 
conversion  of  a  quantity  of  standing  corn,  which  Tripp  claimed  as 
his  property,  and  upon  the  trial  a  verdict  passed  for  Hasceig. 
Tripp  now  brings  error  and  insists  that  the  Circuit  Judge  erred 
in  charging  the  jury,  and  he  asks  that  the  judgment  be  reversed 
therefor. 

The  evidence  conduced  to  show  that  Tripp,  being  the  owner  of 
a  farm  in  Kalamazoo  county,  on  which  he  resided  and  on  which 
he  had  raised  a  field  of  corn  in  the  season  of  1865,  conveyed  the 
farm  to  defendant  about  the  13th  of  December,  in  the  same  year, 
by  warranty  deed,  while  the  com  was  still  standing,  unsevered, 
where  it  grew,  and  without  inserting  in  the  deed  any  exception 
or  reservation;  and  that  Hasceig  took  and  appropriated  a  part  of 
the  crop  as  properly  conveyed  to  him  by  the  deed.  It  was  claimed 
by  Tripp  on  the  trial  that  the  crop,  being  over  ripe  when  the  dord 
was  given,  did  not  pass  by  the  conveyance,  but  the  Circuit  Judge 

17  See  Chilfls'  Personal   Property,   §27. 


80  Cases  on  Personal  Property 

advised  the  jury  that  the  corn,  though  ripe  and  no  longer  deriving 
nourishment  from  the  ground,  would,  if  still  attached  to  the  soil, 
pass  by  eonveyance  of  the  land;  and  this  is  one  of  the  rulings 
complained  of. 

We  think  this  instruction  was  right,  and  v^e  concur  in  the  sug- 
gestion of  the  Circuit  Judge,  that  vs^hether  the  corn  would  pass 
or  not,  could  no  more  depend  upon  its  maturity  or  immaturity, 
than  the  passage  of  a  standing  forest  tree  by  the  conveyance  of 
the  land,  would  depend  upon  whether  the  tree  was  living  or  dead. 

It  is  true  that  the  authorities  in  alluding  to  this  subject  very 
generally  use  the  words  growing  crops,  as  those  embraced  by  a 
conveyance  of  the  land,  but  tliis  expression  appears  to  have  been 
commonly  employed  to  distinguish  crops  still  attached  to  the 
ground,  rather  than  to  mark  any  distinction  between  ripe  and 
unripe  crops. 

In  some  cases,  where  the  question  has  been  raised  under  the 
statute  of  frauds,  as  to  the  validity  of  verbal  sales  of  unsevered 
crops,  a  distinction  has  been  drawn  between  .such  as  were  fit  for 
harvest,  and  such  as  were  not,  upon  the  supposition  that  the  former 
would  not  be  within  the  statute,  while  the  latter  would  be  embraced 
by  it.  See  cases  referred  to  in  Austin  v.  Sawyer,  9  Cow.  E.,  39. 
In  Austin  v.  Sawyer,  however.  Chief  Justice  Savage  seems  to  have 
rejected  the  distinction,  as  he  held  that  a  verbal  sale  of  growing 
crops  was  valid  in  New  York. 

But  one  case  has  been  cited,  or  is  remembered,  in  which  it  has 
been  intimated  that  a  mature  and  unsevered  crop,  would,  because 
of  its  being  ripe,  remain  in  the  grantor  of  the  land,  on  an  absolute 
conveyance  of  the  premises  without  exception  or  reservation;  and 
that  is  the  case  of  Powell  v.  Rich,  41  111.,  466  and  the  point  was 
not  essential  to  the  decision  there. 

There  are  many  authorities,  however,  opposed  to  the  distinction 
suggested  in  that  case.  2  Bl.  Com.  122,  note  3;  Broom's  Maxims, 
354,  margin. 

In  Kittredge  v.  Woods,  3  N.  H.,  503,  Judge  Richardson  cites 
AVentworth,  59,  for  the  proposition  that  ''when  the  land  is  sold 
and  conveyed  without  any  reservation  whatever  crop  is  upon  the 
land  passes,"  and  after  stating  that  ripe  grain  in  the  field  is 
subject  to  execution  as  a  chattel,  Judge  Richardson  adds:  "Yet 
no  doubt  seems  ever  to  have  been  entertained  that  it  passes  with 
the  land  when  sold  without  any  reservation."  And  in  the  ease 
of  Heavilon  v.  Heavilon,  29  Ind.,  509,  cited  by  plaintiff's  counsel 
on  another  ground,  the  Court  expressly  admit  that  until  severance, 


Chattels  Real  81 

the  crop,  as  between  vendor  and  purchaser  of  the  land,  is  part  of 
the  realty.  Indeed,  the  authorities  are  quite  decisive  that,  whether 
the  crop  of  the  seller  of  the  farm  goes  with  the  land  to  the  pur- 
chaser of  the  latter,  when  there  is  no  reservation  or  exception, 
depends  upon  whether  the  crop  is  at  the  time  attached  to  the  soil, 
and  not  upon  its  condition  as  to  maturity.  And  this  seems  to  be 
the  most  natural  and  most  practical  rule.  When  parties  are  bar- 
gaining about  land,  the  slightest  observation  will  discover  whether 
the  crops  are  severed  or  not,  and  there  will  be  no  room  for  question 
or  mistake  as  to  whether  they  belong  with  the  land  or  not,  if  owned 
by  the  vendor. 

If,  however,  the  crops  are  to  be  considered  as  land  or  personal 
chattels,  as  they  continue  or  do  not  continue  to  draw  nourishment 
from  the  soil,  the  instances  will  be  numerous  in  which  very  difficult 
inquiries  will  be  requisite  to  settle  the  point 

The  judgment  of  the  Court  below  is  affirmed  with  costs. 

Campbell,  Ch.  J.  and  Cooley,  J.,  concurred. 

Christiancy,  J. — I  concur  with  my  brethren  in  the  opinion  of 
my  brother  Graves ;  but  had  it  appeared  in  the  ease  that  it  was  the 
custom  of  the  country  where  the  farm  was  situated,  (as  it  is  in 
some  of  the  "Western  states),  to  keep  the  ripe  com  in  the  field  for 
the  winter,  or  till  wanted  for  use  or  market,  and  to  be  taken  only 
on  the  like  occasions  or  for  the  like  reasons  as  if  stored  in  the  crib 
or  granary, — thus  using  the  field  merely  as  a  substitute  for  such 
crib  or  granary, — I  am  inclined  to  think  I  might  have  agreed  in 
the  opinion  intimated  by  the  Supreme  Court  of  Illinois  in  Powell  v. 
Rich,  41  111.  466,  cited  by  brother  Graves.^^ 


?^ 


HECHT  v.  DITTMAN. 

56  Iowa  679,  7  N.  \W.  495,  41  Am.  Rep.  131.    1880. 

The  facts  are  .stated  in  the  opinion. 

Beck,  J. — 1.  Two  cases  are  presented  together  in  this  appeal. 
They  involve  the  same  facts  and  rules  of  law,  and  are  between  the 
same  parties ;  they  are,  therefore,  properly  submitted  together  upon 

18  See  Childs'  Personal  Property,  §§28,  29. 
C.  P.  P.— 6 


82  Cases  on  Personal  Property 

the  same  abstract.  There  is  no  dispute  as  to  the  facts,  which  are  as 
follows:  The  property  replevied  is  barley  cut  and  in  shocks,  and 
oats,  being  partly  threshed  and  partly  in  bundles  or  sheaves,  all 
upon  the  premises  where  it  was  grown.  The  defendant  had  rented 
the  land  of  one  Ehrpe,  who  had  previously  executed  two  mortgages 
thereon, — one,  the  senior  encumbrance,  to  the  New  England  Loan 
Company,  and  the  other  to  the  plaintiff,  Hecht.  After  defendant 
had  rented  the  land  plaintiff  foreclosed  his  mortgage,  and  on  the 
seventh  day  of  July,  1879,  the  time  for  the  redemption  from  the 
sale  as  prescribed  by  the  statute  having  expired,  a  deed  was  executed 
by  the  sheriff.  The  other  mortgage  wa&  foreclosed  and  the  land 
was  sold  to  one,  not  a  party  to  this  transaction,  and  the  time  of 
redemption  under  the  statute  expired  August  15,  1879,  when  a 
sheriff's  deed  was  made.  The  foreclosure  and  sale  under  this 
mortgage  cut  off  all  claim  or  title  held  by  plaintiff  as  well  as  by 
the  mortgagor.  Defendant  continued  in  possession  of  the  land  up 
to  the  trial  in  the  court  below.  At  the  time  plaintiff  received  his 
deed  the  grain  was  not  cut,  but  it  was  mature  and  ready  for  harvest- 
ing before  that  day.  Rainy  weather  had  prevented  the  defendant 
from  cutting  the  grain  before  plaintiff's  deed  was  executed.  The 
court  instructed  the  jury  that  the  title  of  the  grain  passed  to 
plaintiff  by  the  sheriff's  deed,  and  directed  a  verdict  for  plaintiff. 
We  are  required  to  determine  whether  this  view  of  the  law  be 
correct. 

2.  The  sheriff's  deed  executed  upon  the  foreclosure  sale  vested 
plaintiff  with  the  title  of  the  land,  and  the  right  to  all  growing 
crops  followed  the  title  thus  acquired.  Downard  v.  Graff,  40  Iowa, 
597.  This  rule,  we  think,  is  not  applicable  to  grain  which  has 
matured  and  is  ready  for  the  harvest.  It  then  possesses  the  char- 
acter of  persWal  chattels,  and  is  not  to  be  regarded  as  a  part  of 
the  realty.  See  1  Sehouler's  Personal  Property,  125-126;  Bingham 
on  Sales  of  Real  Property,  180-181.  This  conclusion  is  well  sup- 
ported upon  the  following  reasons:  The  grain  being  mature,  the 
course  of  vegetation  has  ceased,  and  the  soil  is  no  longer  necessary 
for  its  existence.  The  connection  between  the  grain  and  the 
ground  has  changed.  The  grain  no  longer  demands  nurture  from 
the  soil.  The  ground  now  performs  no  other  office  than  affording 
a  resting  place  for  the  grain.  It  has  the  same  relations  to  the  grain 
that  the  warehouse  has  to  the  threshed  grain,  or  the  field  has  to 
the  stacks  of  grain  thereon.  It  will  not  be  denied  that  when  the 
grain  is  cut  it  ceases  to  be  a  part  of  the  realty.  The  act  of  cutting 
it,  it  is  true,  appears  to  sever  the  straw  from  the  land.    But  it  is 


Chattels  Real  83 

demanded  by  the  condition  of  the  grain.  It  is  no  longer  growing. 
It  is  no  longer  living  blades,  which  require  the  nourishment  of  the 
soil  for  its  existence  and  development.  It  is  changed  in  its  nature 
from  growing  blades  of  barley  or  oats  to  grain  mature,  and  ready 
for  the  reaper.  Now  the  mature  grain  is  not  regarded  by  the  law, 
like  the  growing  blades,  as  a  part  of  the  reality,  but  as  grain  in  a 
condition  of  separation  from  the  soil. 

Suppose  the  defendant  had  cut  a  part  of  the  72  acres  of  grain 
in  controversy;  the  grain  so  cut,  it  will  not  be  denied,  would  not 
have  passed  to  plaintiff.  There  is  no  valid  reason  why  the  act  of 
cutting  should  change  the  property  in  the  grain.  The  work  required 
time,  and,  therefore,  plaintiff  loses  a  part  of  his  property.  All 
of  the  grain  is  in  the  same  condition — all  ready  for  the  reaper. 
The  part  cut  is  his  property,  while  the  part  uncut  belongs  to  the 
land  owner.  We  think  the  ownership  of  the  grain  should  be  deter- 
mined by  its  condition,  not  by  the  act  of  cutting,  which  cannot  be 
done  as  soon  as  it  is  demanded  by  its  condition.  We  conclude 
that  for  the  reason  the  grain  was  mature,  and  w^as  uncut  because 
defendant  has  been  unable  to  do  the  work,  it  cannot  be  regarded 
as  a  part  of  the  realty  which  passed  with  the  deed  to  plaintiff. 

The  judgment  of  the  circuit  court  must  be  reversed.^^ 


.  Debtor  and  Creditor. 
POLLET  V.  JOPINSON  et  al. 
52  Kan.  478,  35  Pac.  8,  23  L.  R.  A.  258.     1893. 
The  facts  are  stated  in  the  opinion. 

Allen,  J. — Defendants  in  error,  as  plaintiffs  below,  brought 
their  action  against  plaintiff  in  error  to  enjoin  him  from  harvest- 
ing and  carrying  away  about  90  acres  of  wheat,  grown  on  a 
quarter  section  of  land  in  Lincoln  county.  The  wheat  was  sown 
in  the  fall  of  1888  by  H.  H.  Meer,  who  then  owned  and  occupied 
the  land  as  his  homestead.  On  the  4th  day  of  October  he  executed 
a  deed  for  the  land  to  Edward  H.  Thuse.  His  wife  was  in  the 
insane  asylum  at  the  time,  and  he  signed  the  deed  also  as  her 
guardian.     The  copy  of  this  deed  contained  in  the  record   does 

"See  Childs'  Personal  Property,  §§28,  29. 


84  Cases  on  Personal  Property 

not  show  any  approval  by  the  probate  court,  but  no  point  on  the 
want  of  approval  is  made  by  either  party.  On  the  23d  day  of 
October  an  attachment  issued  in  a  suit  against  Meer  by  a  justice 
of  the  peace,  was  levied  on  the  crop  of  wheat,  and  on  the  11th  of 
December,  1888,  the  constable  sold  the  same  to  the  plaintiffs.  Thuse 
conveyed  the  land  on  January  5,  1889,  to  Emma  Meer,  wife  of 
H.  H.  Meer.  He  testified  on  the  trial  that  he  paid  nothing  for 
the  farm,  and  was  to  deed  it  back  to  Meer's  wife,  if  she  got  well, 
or  any  other  party  he  traded  with  or  sold  to.  On  January  31, 
1889,  Meer  and  wife  conveyed  the  land  to  defendant  Policy, 

*  *  *  We  think  this  case  must  be  considered  as  though  no 
change  of  title  occurred  until  the  execution  of  the  deed  by  Meer 
and  wife  to  Policy,  which  was  after  the  sale  of  the  growing  wheat* 

The  second  contention  is  that  growing  wheat  sown  by  the  owner 
of  the  soil  is  a  part  of  the  realty  until  ripe  and  ready  to  sever 
from  the  soil,  and  therefore  is  not  subject  to  attachment  as  per- 
sonalty. In  support  of  this  proposition,  Washb.  Real  Prop.  (2d 
Ed.),  p.  4;  Burleigh  v.  Piper,  (Iowa),  2  N.  W.  520,  and  Ellithorpe 
v.  Reidesil,  32  N.  W.  238,  are  cited.  The  last  of  these  authorities, 
which  is  a  case  decided  by  the  Supreme  Court  of  Iowa,  fully  sus- 
tains this  contention;  and  it  is  said  in  the  opinion:  ''The  whole 
proceeding  was  on  the  theory  that  the  crops  were  personal  prop- 
erty, and  could  be  levied  on  and  sold  as  such;  but  while  they 
remained  immature,  and  were  being  matured  by  the  soil,  they  were 
attached  to  and  constituted  part  of  the  realty;  they  could  no 
more  be  levied  upon  and  sold  on  execution  as  personalty  than 
could  the  trees  growing  upon  the  premises.  This  doctrine  is  ele- 
mentary, and  it  has  frequently  been  declared  by  this  court.  Dow- 
nard  v.  Groff,  40  Iowa  597;  Burleigh  v.  Piper,  51  Iowa  650,  2  N. 
W.  520;  Heeht  v.  Dittman,  56  Iowa  679,  7  N.  W.  495,  and  10 
N.  W.  241;  Martin  v.  Knapp,  57  Iowa  336,  10  N.  W.  721."  It 
must  be  conceded  that  there  is  much  force  in  the  reasoning  to 
sustain  this  position.  It  is  a  well-established  rule  that  a  convey- 
ance of  land,  either  by  voluntaiy  deed  or  judicial  sale  without 
reservation,  carries  all  growing  crops  with  the  title  to  the  land. 
*  *  *  In  the  case  of  Beckman  v.  Sikes,  35  Kan.  120,  10  Pac. 
592,  it  was  held  that  a  sale  under  a  mortgage  foreclosure  carried 
to  the  purchaser  growing  crops  planted  after  the  decree  of  fore- 
closure was  entered  as  against  a  purchaser,  who  bought  from  the 
mortgagor  the  growing  crop  one  day  before  the  sale  by  the  sheriff. 
In  the  opinion  the  court  says:  ''The  lien  of  the  mortgage  and 
the  judgment,  however,  attached  to  the  growing  crops  until  they 


Chattels  Real  85 

were  severed,  as  well  as  to  the  land.  The  mortgagor  planted  the 
crop,  knowing  that  it  was  subject  to  the  mortgage,  and  liable  to 
be  divested  by  the  foreclosure  and  sale  of  the  premises.  Any  one 
who  purchased  said  crops  from  him  took  them  subject  to  the  same 
contingency,  as  the  recorded  mortgage  and  the  decree  of  fore- 
closure were  notice  to  him  of  the  existence  of  the  lien.  If  the  land  is 
not  sold  until  the  crops  ripen  and  are  severed,  the  vendee  of  the 
mortgagor  would  ordinarily  get  a  good  title;  but  if  the  land  was 
sold  and  conveyed  while  the  crop  was  still  growing,  and  there 
was  no  reservation,  or  waiver  of  the  right  to  the  crop,  at  such 
sale  the  title  to  the  same  would  pass  with  the  land."     *     *     * 

It  will  be  observed  that  the  decisions  in  all  these  eases  relate 
to  the  rights  of  mortgagors,  mortgagees,  and  parties  claiming  under 
them.  In  this  case  we  have  a  different  question  to  consider. 
*  *  *  We  have  here  the  bare  question  as  to  whether  immature 
growing  crops  are  a  part  of  the  realty,  as  between  debtor  and 
creditor,  or  are  personal  property,  subject  to  attachment  and  sale 
for  debt.  In  Caldwell  v.  Custard,  7  Kan.  303,  it  was  said  "that 
growing  crops  are  personal  estate."  In  1  Freem.  Ex'ns,  §  113,  it 
is  said:  "Crops,  whether  growing,  or  standing  in  the  field  ready 
to  be  harvested,  are,  when  produced  by  annual  cultivation,  no  part 
of  the  realty.  They  are  therefore  liable  to  voluntary  transfer  as 
chattels.  It  is  equally  well  settled  that  they  may  be  assigned  and 
sold  under  execution.  At  common  law,  fructus  industriales,  as 
growing  corn  or  other  annual  products,  which  would  go  to  the 
executors  upon  death,  may  be  taken  upon  execution."  The  author 
cites  a  long  list  of  authorities  in  support  of  his  position.  In  3 
AVashb.  Real  Prop.,  p.  367,  the  author  says:  "But  although  a  sale 
of  growing  crops  of  annual  culture  not  yet  mature  would  seem 
to  carry  with  it  an  interest  in  land,  since  a  crop  must  stand  upon 
and  draw  nutriment  from  the  soil  until  it  shall  have  grown  and 
matured  for  the  harvest,  the  cases  appear  to  be  quite  uniform  in 
holding  that  the  property  in  the  crop  would  pass,  with  a  license 
to  enter  and  sever  the  same;  and  some  of  the  English  cases  put 
it  upon  the  same  ground  as  that  by  which  one  may  hold  emblements 
growing  upon  the  soil  of  another.  An  attempt  to  sum  up  the 
results  of  the  decisions,  although  they  are  not  wholly  harmonious, 
may  be  made  as  follows:  Fructus  industriales,  as  has  been  pre- 
viously said,  are,  at  common  law,  chattels,  and  are  governed  by 
the  seventeenth  section  of  the  statute  of  frauds.  This  seems  to  be 
agreed  by  all  the  ca.ses,  though  it  is  often  difficult  to  decide  what 
are  fructus  industriales."    In  Benj.  Sales,  p.  126,  it  is  said:    "As 


86  Cases  on  Personal  Property 

to  artificial  or  annual  crops,  fructus  industriales,  the  law  is  quite 
clear  that  a  sale  thereof,  in  whatever  state  of  maturity,  and  how- 
ever long  they  are  to  remain  in  the  soil  in  order  to  complete  their 
growth,  is  a  sale  of  personal  property,  and  not  of  an  interest  in 
land."  *  *  *  "w^g  think  the  authorities  greatly  preponderate 
in  support  of  the  proposition  that  annual  crops,  fruits  of  the  labor 
of  the  tiller  of  the  soil,  are  personal  property,  subject  to  levy  and 
sale  as  chattels  for  the  debts  of  the  owner.  *  *  *  The  statutes 
of  this  state  also  seem  to  recognize  this  rule.  *  *  *  "While 
these  sections  do  not  reach  the  case  we  have  under  consideration, 
we  think  they  show  a  recognition  of  what  we  regard  as  the  settled 
doctrine  of  the  common  law, — that  such  growing  crops  are  personal 
property,  subject  to  sale  on  execution  for  the  debts  of  the  owner; 
*  *  *  However  much  we  may  disapprove  of  the  policy  of  the 
law,  we  are  constrained  to  hold  that  the  growing  wheat  attached  in 
this  case  was  subject  to  levy,  and  to  affirm  the  judgment.  All  the 
justices  concurring.20 


Landlord  and  Tenant. 

Tenancy  Uncertain. 

CARMEN  V.  HOSIER  et  al. 

105  Iowa  367,  75  N.  W.  323.     1898. 

[Suit  to  recover  for  the  use  and  occupation  of  land,  and  to 
restrain  the  defendants  from  removing  the  crops  growing  on  said 
land.  The  case  was  tried  upon  an  agreed  statement  of  facts. 
Judgment  for  plaintiff  and  defendants  appealed.  Further  facts  are 
stated  in  the  opinion.] 

Deemer,  C.  J. — Appellee  is,  and  has  been  for  many  years,  the 
owner  in  fee  simple  of  the  land  occupied  by  the  defendants. 
Sarah  Schutter,  the  mother  of  appellee  and  of  appellant  Elizabeth 
Mosier,  was  possessed  of  a  life  estate  in  these  lands  from  June, 
1888,  to  the  date  of  her  death,  April  11,  1896.  Appellant  William 
Mosier,  the  husband  of  his  co-defendant,  rented  the  premises  from 
the  life  tenant  for  the  year  beginning  March  1,  1896,  agreeing 
for  the  use  thereof  to  clothe,  board,  and  care  for  the  life  tenant 
during  the  term  of  the  lease.    Mosier  entered  into  possession  of  the 

20  See  Childs'  Personal  Property,  §§  28,  29. 


Chattels  Real  87 

premises,  hauled  manure,  and  prepared  the  land  for  seeding  prior 
to  the  death  of  the  life  tenant,  and  thereafter  raised  a  crop  of  corn 
thereon.  Appellants  were  at  all  times  ready  and  willing  to  comply 
with  their  contract,  and  furnish  their  lessor  as  agreed,  provided  she 
would  live  with  them,  but  for  some  reason — not  due  to  any  fault  of 
appellants,  however — she  was  cared  for  by  other  parties  until  her 
death,  in  April.  Emma  Carman  and  Elizabeth  Hosier  are  the  sole 
and  only  heirs  and  personal  representatives  of  the  life  tenant. 

These  are  the  material  facts  gathered  from  the  agreed  state- 
ment, and  it  need  only  be  added  that  the  parties  also  agreed  that, 
if  the  court  found  plaintiff  entitled  to  recover,  she  should  have 
one-half  of  the  corn  grown  upon  the  premises  or  the  value  thereof, 
to  be  protected  in  the  manner  as  finally  decreed  by  the  trial  court. 

In  order  that  appellee  may  recover,  she  must  show  that,  as 
owner  of  the  reversion,  she  is  entitled  to  compensation  for  the  use 
and  occupation  of  the  land,  or  that  as  an  heir,  or  as  one  of  the 
personal  representatives  of  the  deceased  life  tenant,  she  is  en- 
titled to  some  part  of  the  rent  reserved.  It  will  be  observed  that 
the  consideration  for  the  lease  was  an  agreement  to  support  the 
lessor  during  the  term  of  the  lease,  and  that  appellants  performed 
their  obligation  so  far  as  they  were  able  to  do  so.  Now,  it  is 
probably  true  that  the  death  of  the  lessor  relieved  them  of  any 
further  obligation  as  to  her.  But  this  conclusion  by  no  means 
settles  the  controversy,  for  the  general  rule  seems  to  be  that  upon 
the  death  of  a  tenant  for  life  all  interest  of  his  lessee  ceases. 
Page  V.  Wight,  14  Allen  182;  Hoagland  v.  Crum,  113  111.  365; 
Peck  V.  Peck,  35  Conn.  390;  1  Washb.  Real  Prop.  (3d  Ed.),  p.  105. 
Such  les.see  has  no  greater  rights  than  his  lessor,  and  the  estate 
acquired  by  him  is  subject  to  be  defeated  by  the  death  of  the 
tenant  for  life.  A  tenant  for  life,  or  any  other  tenant  whose 
estate  is  of  uncertain  duration,  has  the  right  to  emblements. 
These  are  defined  to  be  the  profits  which  the  tenant  of  an  estate 
is  entitled  to  receive  out  of  the  crops  which  he  has  planted,  and 
which  have  not  been  harvested,  when  his  estate  terminates.  Under 
this  term  are  included,  as  a  rule,  only  such  products  of  the  soil 
as  are  of  annual  growth  and  cultivation.  In  the  case  of  Reilly  v. 
Ringland,  39  Iowa  106,  it  is  said:  "It  is  a  broad  and  almost 
universal  principle  that  the  tenant  who  sows  a  crop  shall  reap  it, 
if  the  term  of  his  tenancy  be  uncertain.  /.In  order  to  entjtle  a 
tenant  or  his  executor  or  adniinistrator  to  emblements,  his  tenancy 
must  be  uncertain  in  its  juration,  i  .In  the  next  place,  the  tenancy 
must  be  determined  by  act  ofTJod.     One  of  the  important  rights 


88  Cases  on  Personal  Property 

of  a  tenant  for  life  is  this  right  to  emblements  or  profits  of  the 
crop  which  the  law  gives  him,  or  his  executor,  if  he  be  dead,  to 
compensate  for  the  labor  and  expense  of  tilling  and  sowing  the 
land."  In  the  case  before  us  the  tenancy  was  terminated  by  act 
of  God,  but  it  does  not_app_ear  that  the  life  tenant,  or.  his  lessee, 
had  planted  any  crops  at  the  time  the  estate  terminated;  and, 
as  the  right  to  emblements  seems  to  be  based  upon  the  sowing  or 
planting  of  the  crop,  the  tenants  had  no  right  to  use  and  occupy 
the  land  under  their  lease.  If  the  estate  is  terminated  before  the 
seed  is  actually  sown,  there  will  be  no  right  to  emblements.  Nor 
can  the  cost  of  preparing  the  ground  for  the  reception  of  the  seed 
be  recovered.  Lane  v.  King,  8  Wend.  584;  Price  v.  Pickett,  21 
Ala.  741;  Thompson's  Adm'r  v.  Thompson's  Ex'r,  6  Munf.  514; 
Gee  V.  Young,  2  N.  C.  17.  As  appellants  had  not  planted  the 
corn  which  they  now  seek  to  hold  under  the  rule  relating  to 
emblements,  their  estate  terminated  with  the  death  of  their  lessor, 
and  they  are  liable  to  the  reversioner  or  remainder-man  for  the 
use  and  occupation  of  the  premises.  The  rule  at  common  law 
seems  to  have  been  that  the  reversioner  was  entitled  to  the  entire 
rent,  but  this  was  cured  by  statute  (Code  1873,  §2011),  which 
provides  for  the  apportionment  of  the  rent.  See,  also.  Code, 
§  2988.  As  the  parties  have  agreed,  however,  upon  the  amount 
of  the  recovery,  we  have  no  occasion  to  construe  this  section,  or 
to  attempt  to  apply  it  to  the  facts  of  this  case.  The  mere  fact 
that  appellants  have  paid  the  rent  for  the  full  term  is  not  con- 
trolling. Their  estate  was  liable  to  be  extinguished  at  any  time 
by  the  death  of  their  lessor,  and  when  so  extinguished  they  had 
no  further  right  of  occupation,  unless  to  reap  what  they  had  sown. 
As  they  had  sown  nothing,  they  became  liable  for  use  and  occu- 
pation during  the  remaining  period  of  the  lease.  The  judgment 
of  the  trial  court  was  right,  and  it  is  affirmed.^! 


1 


Tenancy  Certain. 

CARNEY  V.  MOSHER  et  al. 

97  Mich.  554,  56  N.  W.  935.     1893. 

The  facts  are  stated  in  the  opinion. 

Montgomery,  J. — The  plaintiff  brought  trover  for  wheat  grown 
upon  land  owned  by  defendant  Orrin  B.  Mosher.    The  wheat  was 
21  See  Childs '  Personal  Property,  §  29. 


Chattels  Real  89 

sown  by  Alvin  L.  Mosher  while  occupying  the  land  as  the  tenant 
of  Orrin  B.  The  wheat  was  harvested  by  defendant  Mosher,  and 
sold  to  defendant  Henry  S.  Walworth,  who  it  is  claimed,  had  notice 
of  plaintiff's  rights.  Prior  to  the  spring  of  1890,  Alvin  L.  Mosher 
had  occupied  the  land  under  a  written  lease,  and  in  the  spring 
of  that  year  renewed  his  lease  for  one  year  by  oral  agreement. 
There  had  been  a  previous  lease,  and,  as  the  testimony,  of  plaintiff 
shows,  on  the  occasion  of  the  present  letting,  Alvin  refused  to 
pay  the  rent  previously  reserved,  unless  he  should  have  the  privilege 
of  putting  the  land  all  into  wheat,  and  it  was  agreed  that  he 
might  do  so.  He  proceeded  to  sow  the  land  to  wheat,  and  in 
January,  1891,  sold  the  growing  crop  to  plaintiffcMn  the  spring, 
Alvin  surrendered  possession  to  Orrin  B.,  who  proceeded  to 
reap  the  crop,  after  notice  of  plaintiff's  purchase.  The  circuit 
judge  directed  a  verdict  for  defendants  on  the  ground  that  the 
lease  was  oral,  and  that  the  implied  provision  that  the  lessee  should 
have  the  right  to  reap  the  crop  of  wheat  was  void,  under  the 
statute  of  frauds.     *     *     * 

If  it  be  assumed  that  the  tenant  was  in  possession  by  right,  and 
under  a  lease  which  gave  him  the  right  to  reap  the  crop,  as  well 
as  to  sow,  it  follows  that  inasmuch  as  he  sold  the  crop  before  any 
default  on  his  part,  so  far  as  appears,  and  certainly  before  for- 
feiture, the  purchaser  from  him  obtained  a  title  which  could  not 
be  defeated  by  the  lessee's  subsequent  default.  This  is  the  rule  estab- 
lished in  this  state  by  Nye  v.  Patterson,  35  Mich.  413,  and  Miller 
v.  Havens,  51  Mich.  482,  16  N.  W.  Rep.  865.  See,  also,  Dayton 
V.  Vandoozer,  39  Mich.  749.  The  question  for  our  determination, 
therefore,  is  the  one  upon  which  the  case  was  decided  below, 
namely,  did  the  parol  lease  for  one  year,  with  the  agreement  that 
the  tenant  might  sov/  the  land  to  wheat,  give  him  a  right  to  enter 
after  the  expiration  of  his  lease,  and  reap  the  crop  ?  On  the  part 
of  the  defendants,  it  is  contended  that  the  right  claimed  is  in  the 
nature  of  an  .interest  in  land,  and  that  to  sustain  the  right  to  reap 
the  crop  would  be,  in  effect,  extending  the  lease  into  the  second 
year,  and  that  said  contract  is  therefore  void,  under  the  statute 
of  frauds.  On  the  other  hand,  it  is  contended  that  the  lease  ter^ 
minated,  according  to  its  terms,  at  the  end  of  one  year,  and  that 
the  right  to  enter  in  and  reap  the  crop  is  one  growing  out  of  the 
cature  of  the  previous  lease,  which  has  expired.  It  is  very  evident 
that,  whatever  the  right  to  enter  and  reap  the  crop  be  called,  it 
was  a  right  which  could  not  be  exercised  within  one  year.  "We 
think  it  is  equally  evident  that  it  was  an  interest  in  land.     The 


90  Cases  on  PERSONi\x,  Property 

exclusive  use  of  the  land  was  required  during  three  months  after 
the  end  of  a  year  from,  the  letting,  before  the  crop  would  ripen. 
That  this  was  a  burden  upon  the  estate  in  the  land  is  too  plain 
for  argument.  It  was  held  to  be  an  interest  in  the  land  in  Reeder 
V.  Sayre,  70  N.  Y.  183.  In  the  present  case,  the  lessee  was  in 
possession  at  the  time  of  entering  into  the  contract,  and  continued 
in  possession  under  the  void  lease.  This  constituted  him  a  tenant 
at  will,  under  our  holdings.  See  Huyser  v.  Chase,  13  Mich.  98. 
The  tenancy  could  be  terminated  by  either  party  on  three  months' 
notice  to  quit.  The  tenant  did  not  wait  for  this,  but  left  the 
premises  in  January  or  February,  1891.  He  paid  no  rent.  The 
owner  thereupon  took  possession,  as  he  had  a  right  to  do,  and 
as  he  could,  but  for  the  lessee's  peaceable  surrender,  have  done 
by  a  notice  to  quit.  If  it  be  suggested  that  treating  the  lease  ^ 
is  void,  under  the  statute  of  frauds,  the  tenant  should,  because 
of  his  previous  relations,  be  treated  as  a  tenant  from  year  to 
year,  he  .stands  in  no  better  situation,  for  the  year  would  be  ter- 
minated, under  such  holding,  March  31,  1891,  giving  the  owner 
the  right  to  possession  thereafter,  and  the  right  to  reap  the  crop. 
The  judgment  will  be  affirmed  with  costs.  The  other  justices, 
eoncurred.22 


Rights  op  Undertenants.  d 

GRAY  V.  WORST. 

129  Mo.  122,  31  8.  W,  585.     1895. 

The  facts  are  stated  in  the  opinion. 

Barclay,  J. — ^We  adopt  substantially  the  statement  of  the  plain- 
tiff in  this  court  as  giving  a  fair  outline  of  the  controversy.  The 
action  was  instituted  in  the  circuit  court  of  Jasper  county,  August 
16,  1892.  The  plaintiff,  in  his  petition,  claimed  that  in  June, 
1892,  he  was  the  owner  of  certain  land  in  said  county,  and  also 
the  owner  of  27  acres  of  wheat,  20  acres  of  oats,  and  33  acres  of 
corn  and  potatoes  standing  and  growing  upon  said  premises ;  and 
that  afterwards  the  defendant  wrongfully  took  said  crops,  and 
severed  the  same  from  said  land,  and  converted  them  to  his  own 

22  See  Childs'  Personal  Property,  §§28,  29. 


Chattels  Real  91 

use,  to  plaintiff's  damage  in  the  sum  of  $700,  for  which  he  prayed 
judgment.  The  defendant's  answer  consisted — First,  of  a  general 
denial;  second,  statement  that  in  August,  1891,  he  rented  said 
premises  from  Seth  Shoemaker,  for  a  term  ending  September  1, 
1892,  and  in  October,  1891,  paid  Shoemaker  the  full  amount  of 
rent  due  under  his  lease  for  said  term.  A  trial  was  had  by  the 
court,  without  the  intervention  of  a  jury,  and  resulted  in  a  finding 
and  judgment  for  defendant.  In  due  time  plaintiff  filed  a  motion 
for  a  new  trial,  which  being  overruled,  he  brought  the  case  to  this 
court  by  appeal. 

The  facts  disclosed  on  the  trial  are  substantially  as  follows: 
August  1,  1888,  James  S.  Shoemaker  (sometimes  called  "Seth" 
Shoemaker)  was  the  owner  of  the  land  referred  to,  and  executed 
a  deed  of  trust  (duly  recorded)  conveying  said  land  to  George 
"W.  Toms,  as  trustee,  to  secure  a  note  of  $1,000,  payable  to  the 
]\Iutual  Benefit  Life  Insurance  Company,  of  Newark,  New  Jersey. ' 
*  *  *  It  was  further  provided  that,  in  default  of  compliance 
with  any  of  the  covenants  of  the  deed,  the  whole  debt  might  (.at 
the  option  of  the  holder  of  the  indebtedness  secured)  become  due, 
and  a  sale  of  the  mortgaged  premises  might  then  be  had,  after 
due  advertisement  of  said  sale  for  30  days  in  a  newspaper  pub- 
lished in  the  county  where  the  land  lay.  *  *  *  Default  was 
made  in  the  payment  of  taxes  for  the  years  1890  and  1891,  and 
in  the  paymept  of  the  interest  coupon  maturing  April  1,  1892. 
Toms,  as  trustee,  resigned  his  trust,  and  the  sheriff  of  Jasper 
county,  acting  as  trustee,  at  the  request  of  the  legal  holder  of 
said  note  and  coupons,  advertised  the  property  for  sale.  *  *  * 
On  June  18,  1892,  the  property  was  sold  by  the  sheriff,  acting  as* 
trustee,  and  purchased  by  plaintiff,  to  whom  a  deed  in  regular 
form  was  executed.     *     *     * 

*  *  *  The  estate  of  defendant  having  been  terminated,  before 
the  efflux  of  its  full  term,  by  means  of  the  sale  already  mentioned,_ 
which  occurred  without  any  default  on^his  part,  brings  the  de- 
fendant within  the  protection  of  the^eneral^inile  a^_to_ihe_ri&bt_ 
to  growing  crops  between  landlord  and  tenant.  The  defendant 
had  paid  in  advance  his  rent  in  full  to  September,  following  the 
sale,  and  the  termination  of  the  estate,  June  18,  1892,  occurred 
through  no  fault  of  his.  lie  had  not  assumed  any  of  the  obliga- 
tions to  pay  the  principal  debt  secured.  He  was  a  mere  tenant  of 
the  original  debtor.  He  came  lawfully  into  possession  of  the 
premises,  and  severed  the  crop  before  he  gave  up  the  possession. 


92  Cases  on  Personal  Property 

"We  shall  not  undertake  to  define  the  precise  classification  of  the 
tenancy  which  the  deed  of  trust  established.  Whatever  the  dura- 
tion of  that  tenancy,  it  is  clear,  from  the  language  defining  it, 
that  the  landlord 's  assent  was  given  to  the  assignment  or  transfer 
of  the  possession.    So  defendant's  holding  was  lawful. 

It  is  also  plain  that  until  the  creditor  secured  by  the  deed  of 
trust  elected  to  resort  to  the  land,  and  thus  enforce  his  security, 
the  principal  debtor  might,  at  any  time,  by  making  the  proper 
payments  according  to  his  agreement  in  the  deed,  have  cured  any 
prior  default.  Having  accepted  payment  of  rent  from  Mr.  Worst 
to  September,  1892,  he  was  in  duty  bound  to  make  those  payments 
to  preserve  to  his  tenant  the  possession  to  which  the  rent  gave  the 
tenant  right  as  between  themselves.  When  the  creditor  exercised 
his  option  to  proceed  and  to  assert  his  paramount  claim,  the  ter- 
mination of  the  subtenant's  term,  which  thus  resulted,  came 
strictly  within  a  rule  of  the  law  of  emblements  which  we  have 
transplanted  from  the  English  system,  and  which  yet  remains  in 
effect  as  part  of  the  great  body  of  jurisprudence  derived  from 
that  source.  Rev.  St.  1889,  §  6561.  The  rule  on  this  point  is 
stated  by  one  of  the  text  writers  on  the  law  of  landlord  and  tenant 
as  follows:  "But,  although  no  indulgence  is  given  in  such  cases 
to  tenants  themselves,  it  has  been  extended  to  undertenants  who 
have  not  participated  in  destroying  the  estate.  Where,  therefore, 
a  tenant  for  years,  whose  lease  depended  on  a  certain_conditjon, 
underlet  the  land,  and  his  underlessee  sowed  corix,  and  af terwards^ 
the  first  tenant  broke  the  condition,  and  so  forfeited  the  lease,  by 
means  of  which"  they  were^gTousted,  the  under-tenant  was,  never: 
ThelessTallowed  to  enter  and  cut_thfi  (".orn  when  it  was  ripa," 
TayL  Landl.  &  Ten.  The  ease  at  bar  does  not  require  us  to  go 
quite  so  far  as  the  general  rule  just  quoted,  and  we  certainly  do 
not  purpose  to  extend  our  ruling  beyond  the  facts  in  judgment. 
Here  there  is  no  question  of  any  right  to  re-enter.  The  tenant 
reaped  his  crop  while  in  possession,  and  before  surrendering  to 
the  purchaser  at  the  trustee's  sale.  The  action  does  not  deal  with 
any  other  question  than  the  contested  right  to  recover  for_the^ 
crop  so  har\-ested^by_the_pei^on  whose  industry  planted  it.  On 
that  state  of  facts,  we  feel  no  doubt  in  holding  that  the  value 
of  the  crops,  so  secured  by  the  tenant,  cannot  be  recovered  from 
him  by  the  purchaser  under  the  trustee's  title.  The  case  seems 
to  us  to  fall  clearly  within  range  of  the  sound  principles  of  policy 
which  give  reason  to  the  law  of  emblements. 


Chattels  Real  93 

The  judgment  of  the  learned  trial  judge  was  obviously  for  the 
right  party.  It  should  therefore  be  affirmed.  Rev.  St.  1899,  §  2100. 
It  is  so  ordered. 

BR.VCE,  C.  J.,  and  MacFarlane,  J.,  concur.  Robinson,  J.,  con- 
curs in  the  result.-^ 


Standing  Timber. 
HIRTH  V.  GRAHAM. 


50  OUo  St.  57,  33  N.  E.  90;  40  Am.  St.  Rep.  611,  19  L.  R.  A.  721. 

1893. 

The  facts  are  stated  in  the  opinion. 

Bradbury,  J. — The  plaintiff  in  error  brought  an  action  before 
a  justice  of  the  peace  to  recover  of  the  defendant  in  error  damages 
alleged  to  have  been  sustained  on  account  of  the  refusal  of  the 
latter  to  perform  a  contract  by  which  he  had  sold  to  the  plaintiff 
in  error  certain  growing  timber.  The  defendant  attempted  to 
secure  the  dismissal  of  the  action,  on  the  ground  that  the  justice 
had  no  jurisdiction  of  an  action  for  the  breach  of  such  a  contract. 
Failing  in  this,  and  the  action  being  tried  to  a  jury,  he  requested 
the  ju.stice  to  instruct  the  jury  ''that  if  they  find  from  the  evi- 
dence that  the  trees  about  which  this  action  is  brought  were  at 
the  time  of  said  alleged  contract  then  growing  upon  the  land  of  de- 
fendant, and  that  no  note  or  contract  or  memorandum  of  the  contract 
of  sale  was  at  the  time  made  in  writing,  the  plaintiff  cannot  maintain 
this  action,  and  your  verdict  should  be  for  the  defendant, ' '  which  in- 
struction the  justice  refused  to  give,  but  on  the  contrary  gave  to  them 
the  following  instructions  on  the  subject:  "This  is  an  action  for 
damage,  not  on  the  contract,  nor  to  enforce  the  same ;  and  if  you  find 
that  a  contract  was  made  verbal  or  otherwise  and  the  defendant  re- 
fused or  failed  to  comply  with  its  terms,  the  plaintiff  is  entitled 
to  any  damage  you  may  find  him  to  have  sustained  by  way  of 
such  noncompliance."  The  defendant  in  error,  who  was  also  the 
defendant  in  the  justice's  court,  excepted,  both  to  the  charge  as 
given  and  to  the  refusal  to  charge  as  requested ;  the  verdict  and 

23  See  Childs '  Personal  Property,  8  29. 


94  Cases  on  Personal  Property 

judgment  being  against  him,  he  embodied  the  charge  as  given,  as 
well  as  that  refused,  in  separate  bills  of  exceptions,  and  brought 
the  cause  to  the  court  of  common  pleas  on  error,  where  the  jugd- 
ment  of  the  justice  of  the  peace  was  affirmed.  He  thereupon 
brought  error  to  the  circuit  court,  where  the  judgments  of  the 
court  of  common  pleas  and  that  of  the  justice  were  both  reversed, 
and  it  is  to  reverse  this  judgment  of  the  circuit  court,  and  rein- 
state and  affirm  those  of  the  court  of  common  pleas  and  justice 
of  the  peace,  that^this  proceeding  is  pending. 

Counsel  for  plaintiff  in  error  contends  that  the  record  contains 
nothing  to  show  that  the  trees  which  were  the  subject  of  the  con- 
tract were  standing  or  growing,  and  that  therefore  it  does  not 
appear  that  the  defendant  was  injured  by  the  instructions  given 
and  refused.  The  record  does  not  support  this  contention.  During 
the  trial  three  separate  bills  of  exceptions  were  taken,  and,  when 
all  of  them  are  considered  together,  it  clearly  appears  that  evi- 
dence was  given  tending  to  prove  that  the  trees,  the  subject  of 
the  contract,  were  growing  on  the  land  at  the  time  it  was  made, 
and  that  the  contract  was  not  evidenced  by  any  note  or  memo- 
randum in  writing.  The  instruction  refused  was,  therefore,  per- 
tinent, and  if  it  contained  a  sound  legal  proposition  the  refusal 
to  give  it  in  charge  to  the  jury  was  prejudicial  to  the  de- 
fendant.    *     *     * 

"Whether  a  sale  of  growing  trees  is  the  sale  of  an  interest  in  or 
concerning  land  has  long  been  a  much  controverted  subject  in  the 
courts  of  England,  as  well  as  in  the  courts  of  the  several  states 
of  the  Union.  The  question  has  been  differently  decided  in  dif- 
ferent jurisdictions,  and  by  different  courts,  or  at  different  times 
by  the  same  court  within  the  same  jurisdiction.  The  courts  of 
England,  particularly,  have  varied  widely  in  their  holdings  on 
the  subject.  Lord  Mansfield  held  that  the  sale  of  a  crop  of 
growing  turnips  was  within  this  clause  of  the  statute.  Emraerson 
v.  Heelis,  2  Taunt.  38,  following  the  case  of  AA'addington  v.  Bristow, 
2  Bos.  &  P.  452,  where  the  sale  of  a  crop  of  growing  hops  was 
adjudged  not  to  have  been  a  sale  of  goods  and  chattels  merely. 
And  in  Crosby  v.  Wadsworth,  6  East  602,  the  sale  of  growing 
grass  was  held  to  be  a  contract  for  the  sale  of  an  interest  in  or 
concerning,  land.  Lord  Ellenborough  saying:  "Upon  the  first  of 
these  questions,"  (whether  this  purchase  of  the  growing  crop  be 
a  contract  or  sale  of  lands,  tenements,  or  hereditaments,  or  any 
interest  in  or  concerning  them,)  "I  think  that  the  agreement 
stated,  conferring,  as  it  professses  to  do,  an  exclusive  right  to  the 


Chattels  Real  95 

vesture  of  the  land  during  a  limited  time  and  for  given  purposes, 
is  a  contract  or  sale  of  an  interest  in,  or  at  least  an  interest  con- 
cerning, lands."  Id.  610.  Afterwards,  in  Teal  v.  Auty,  2  Brod. 
&  B.  99,  the  court  of  common  pleas  held  a  contract  for  the  sale 
of  growing  poles  was  a  sale  of  an  interest  in  or  concerning  lands. 
Many  decisions  have  been  announced  by  the  English  courts  since 
the  cases  above  noted  were  decided,  the  tendency  of  which  have 
been  to  greatly  nan^ow  the  application  of  the  fourth  section  of 
the  statute  of  frauds  to  crops,  or  timber,  growing  upon  land. 
Crops  planted  and  raised  annually  by  the  hand  of  man  are  prac- 
tically withdrawn  from  its  operation,  while  the  sale  of  other  crops, 
and  in  some  instances  growing  timber,  also,  are  withdrawn  from 
the  statute,  where,  in  the  contemplation  of  the  contracting  parties, 
the  subject  of  the  contract  is  to  be  treated  as  a  chattel.  The 
latest  declaration  of  the  English  courts  upon  this  question  is  that 
of  the  common  pleas  division  of  the  high  court  of  justice,  in  ]\Iar- 
shall  V.  Green,  1  C.  P.  Div.  35,  decided  in  1875.  The  syllabus 
reads:  "A  sale  of  growing  timber  to  be  taken  away  as  soon  as 
possible  by  the  purchaser  is  not  a  contract  or  sale  of  land,  or  any 
interest  therein,  w-ithin  the  fourth  section  of  the  statute  of  frauds. 
This  decision  was  rendered  by  the  three  justices  who  constituted 
the  common  pleas  division  of  the  high  court  of  justice,  Coleridge, 
C.  J.,  Brett  and  Grove,  JJ.,  whose  characters  and  attainments 
entitle  it  to  great  weight;  yet,  in  view  of  the  prior  long  period 
of  unsettled  professional  and  judicial  opinion  in  England  upon 
the  question,  that  the  court  was  not  one  of  final  resort,  and  that 
the  decision  has  encountered  adverse  criticism  from  high  authority, 
(Benj.  Sales,  [Ed.  1892,]  §  126,)  it  cannot  be  considered  as  finally 
settling  the  law  of  England  on  this  subject.  The  conflict  among 
the  American  cases  on  the  subject  cannot  be  wholly  reconciled. 
In  Massachusetts,  Maine,  Maryland,  Kentucky,  and  Connecticut 
sales  of  growing  trees,  to  be  presently  cut  and  removed  by  the 
vendee,  are  held  not  to  be  within  the  operation  of  the  fourth 
section  of  the  statute  of  frauds.  Claflin  v.  Carpenter,  4  Mete. 
(Mass.)  580;  Xettleton  v.  Sikes,  8  Mete.  (Mass.)  34;  Bostwick  v. 
Leach,  3  Day,  476;  Erskine  v.  Plummer,  7  Me.  447;  Cutler  v. 
Pope,  13  ^le.  377 ;  Cain  v.  McGuire,  13  B.  Mon.  340 ;  Byassee  v. 
Reese,  4  Mete.  (Ky.)  372;  Smith  v.  Brj-as,  5  ^Id.  141.  In  none 
of  these  cases,  except  4  Mete.  (Ky.)  373,  and  in  13  B.  Mon.  340, 
had  the  vendor  attempted  to  repudiate  the  contract  before  the 
vendee  had  entered  upon  its  execution,  and  the  statement  of  facts 
in  tho.se  two  cases  do  not  speak  clearly  upon  this  point.     In  the 


96  Cases  on  Personal.  Property 

leading  English  case  before  cited,  (Marshall  v.  Green,  1.  C.  P. 
Div.  35,)  the  vendee  had  also  entered  upon  the  work  of  felling 
the  trees,  and  had  sold  some  of  their  tops  before  the  vendor  coun- 
termanded the  sale.  These  cases,  therefore,  cannot  be  regarded  as 
directly  holding  that  a  vendee,  by  parol,  of  growing  timber  to  be 
presently  felled  and  removed,  may  not  repudiate  the  contract 
before  anything  is  done  under  it;  and  this  was  the  situation  in 
which  the  parties  to  the  case  now  under  consideration  stood  when 
the  contract  was  repudiated.  Indeed,  a  late  case  in  Massachusetts, 
(Giles  V.  Simonds,  15  Gray,  441,)  holds  that  "the  owner  of  the 
land,  who  has  made  a  verbal  contract  for  the  sale  of  standing 
wood  to  be  cut  and  severed  from  the  freehold  by  the  purchaser, 
may  at  any  time  revoke  the  license  which  he  thereby  gives  to  the 
purchaser  to  enter  his  land  to  cut  and  carry  away  the  wood,  so 
far  as  it  relates  to  any  wood  not  cut  at  the  time  of  the  revocation. ' ' 
The  courts  of  most  of  the  American  states,  however,  that  have 
considered  the  question,  hold  expressly  that  a  sale  of  growing 
or  standing  timber  is  a  contract  concerning  an  interest  in  lands, 
and  within  the  fourth  section  of  the  statute  of  frauds.  Green  v. 
Armstrong,  1  Denio,  550;  Bishop  v.  Bishop,  11  N.  Y.  123;  West- 
brook  V.  Eager,  16  N.  J.  Law,  81 ;  Buck  v.  Pickwell,  27  Vt.  157 ; 
Cool  v.  Lumber  Co.,  87  Ind.  531 ;  Terrell  v.  Frazier,  79  Ind.  473 ; 
Owens  V.  Lewis,  46  Ind.  488 ;  Armstrong  v.  Lawson,  73  Ind.  498 ; 
Jackson  v.  Evans,  44  Mich.  510,  7  N.  W.  Rep.  79 ;  Lyle  v.  Shinne- 
barger,  17  Mo.  App.  66;  Howe  v.  Batchelder,  49  N.  H.  204; 
Putney  v.  Day,  6  N.  H.  430 ;  Bowers  v.  Bowers,  95  Pa.  St.  477 ; 
Daniels  v.  Bailey,  43  Wis.  566;  Lillie  v.  Dunbar,  62  Wis.  198, 
22  N.  W.  Rep.  467 ;  Knox  v.  Haralson,  2  Tenn.  Ch.  232.  The  ques- 
tion is  now,  for  the  first  time,  before  this  court  for  determination ; 
and  we  are  at  liberty  to  adopt  that  rule  on  the  subject  most  cora- 
formable  to  sound  reason.  In  all  its  other  relations  to  the  affairs 
of  men,  growing  timber  is  regarded  as  an  integral  part  of  the  land 
upon  which  it  stands;  it  is  not  subject  to  levy  and  sale  UDon 
execution  as  chattel  property;  it  descends  with  the  land  to  the 
heir,  and  passes  to  the  vendor  with  the  soil.  Jones  v.  Timmons, 
21  Ohio  St.  596.  Coal,  petroleum,  building  stone,  and  many  other 
substances  constituting  integral  parts  of  the  land,  have  become 
articles  of  commerce,  and  easily  detached  and  removed,  and,  when 
detached  and  removed,  become  personal  property,  as  well  as  fallen 
timber ;  but  no  case  is  found  in  which  it  is  suggested  that  sales  of 
such  substances,  with  a  view  to  their  immediate  removal,  would 
not  be  within  the  statute.    Sales  of  growing  timber  are  as  likely 


Chattels  Ke.vl  97 

to  become  the  subjects  of  fraud  and  perjury  as  are  the  other  in- 
tegral parts  of  the  land,  and  the  question  whether  such  sale  is  a 
sale  of  an  interest  in  or  concerning  lands  should  depend  not  upon 
the  intention  of  the  parties,  but  upon  the  legal  character  of  the 
subject  of  the  contract,  which,  in  the  case  of  growing  timber,  is 
that  of  realty.  This  rule  has  the  additional  merit  of  being  clear, 
simple,  and  of  easy  application, — qualities  entitled  to  substantial 
weight  in  choosing  between  conflicting  principles.  Whether  cir- 
cumstances of  part  performance  might  require  a  modification  of 
this  rule  is  not  before  the  court,  and  has  not  been  considered. 
Judgment  affirmed.^-i      ^ 


^ 


^  Fruits. 

PURNER  V.  PIERCY. 
40  Md.  212,  17  Am.  Rep.  591.     1874 


[The  plaintiff  and  the  defendant  contracted  by  parol  for  the  pur- 
chase from  the  plaintiff  of  a  crop  of  peaches  then  growing  in  the 
plaintiff's  orchard.  The  defendant  was  to  gather  the  peaches  as 
they  matured.  He  paid  a  part  of  the  purchase  price  when 
the  contract  was  made,  and  later,  before  any  of  the  peaches  were 
gathered,  he  paid  a  further  sum.  He  gathered  and  removed  the 
peaches  as  they  matured,  but  failed  to  pay  the  balance  due,  where- 
upon the  plaintiff  brought  action  to  recover  the  sura  due.] 

Stewart,  J. —  *  *  *  g^^  ^j^g  defendant's  counsel  insists 
that  the  contract  was  invalid  under  the  operation  of  the  4th  section 
of  the  Statute  of  Frauds.  That  section  provides  that  no  action  shall 
be  brought  to  charge  any  person  upon  any  contract  or  sale  of 
lands,  or  any  interest  in  or  concerning  them,  unless  the  agreement 
upon  which  such  action  .shall  be  brought,  or  some  memorandum 
thereof,  shall  be  in  writing,  &c. 

Agreement  and  contract  seem  to  be  considered  in  the  section  of 
the  same  purport,  and  the  appellant's  counsel  insists  the  contract 
or  agreement  relied  upon  here  to  charge  the  defendant,  is  for  lands, 
or  some  interest  in  or  concerning  them,  and  therefore  not  to  be 
established  by  parol  proof. 

a*  See  Childs'  Personal  Property,  §27. 
C.  P.  P.— 7 


98  Cases  on  Personal  Property 

It  would  be  giving  to  the  Statute  a  very  latitudinarian  con- 
struction to  bring  the  case  in  question  within  the  mischief  designed 
to  be  avoided  by  the  Statute.  We  have  been  referred  to  no  case 
in  this  State,  and  have  found  none  to  sanction  such  doctrine. 
The  cases  of  Ellicott  v.  Peterson's  Ex'crs,  4  Md.  476,  and  Smith 
V,  Bryan,  5  Md.  141,  are  against  such  enlarged  construction. 

There  is  certainly  some  conflict  in  the  adjudged  cases  in  regard 
to  the  interpretation  of  contracts  for  the  sale  of  crops  and  the 
natural  products  growing  upon  land;  and  it  is  difficult  to  deduce 
therefrom  any  clearly  defined  rule  upon  the  subject. 
^  Mr.  Alexander,  in  his  admirable  treatise  on  the  British  Statutes 
in  force  here,  --has  carefully  referred  to  numerous  cases,  both 
English  and  American,  and  deduced  therefrom  the  distinctions 
which  seemed  to  have  prevailed  in  regard  to  the  operation  of  the 
Statute  in  relation  to  growing  crops  and  other  produce  on  land. 
At  page  532  et  seq.,  contracts,  as  to  the  natural  product  of  the 
land,  are  distinguished  from  such  as  relate  to  crops  raised  by  the 
industry  of  man,  and  yielding  an  annual  profit.  A  distinction  is 
also  noted  between  the  natural  produce  when  severed  by  the  seller 
or  by  the  buyer.  He  refers  to  the  recent  work  of  Benjamin  on  Sales, 
84  et  seq.,  for  a  fuller  discussion.  Mr.  Benjamin,  at  p.  99,  remarks, 
from  all  that  precedes,  the  law  on  the  subject  of  the  sale  of  growing 
crops  may  be  summed  up  in  the  following  proposition,  viz :  Grow- 
ing crops,  if  fructus  industriales,  are  chattels,  and  an  agreement 
for  the  sale  of  them,  whether  mature  or  immature,  whether  the 
property  in  them  is  transferred  before  or  after  severance,  is  not 
an  agreement  for  the  sale  of  any  interest  in  land,  and  is  not  governed 
by  the  4th  section  of  the  Statute  of  Frauds.  Growing  crops,  if 
fructus  naturales,  are  part  of  the  soil,  before  severance,  and  an 
agreement  therefore  vesting  an  interest  in  them  in  the  purchaser 
before  severance,  is  governed  by  the  4th  section ;  but  if  the  interest 
is  not  to  be  vested  till  they  are  converted  into  chattels  by  severance, 
then  the  agreement  is  an  executory  agreement  for  the  sale  of  goods, 
wares  and  merchandise,  governed  by  the  17th,  and  not  by  the  4th 
section  of  the  Statute. 

Assuming  these  distinctions  to  be  well  founded,  still  what  is  the 
natural  and  what  the  artificial  product  remains  to  be  determined 
in  each  case.  Mr.  Phillips,  in  his  work  on  Evidence,  3  vol.,  250, 
says,  the  Statute  does  not  include  agreements  for  the  sale  of  the 
produce  of  a  given  quantity  of  land,  and  which  will  afterwards 
become  a  chattel ;  though  some  advantage  may  accrue  to  the  vendee 
by  its  continuing  for  a  time  in  the  land. 


Chattels  Real.  99 

In  Taylor's  recent  book  on  the  Law  of  Evidence,  2d  vol.,  sec. 
952,  the  following  propositions  are  submitted :  1st,  A  contract  for 
the  purchase  of  fruits  of  the  earth,  ripe,  though  not  yet  gathered, 
is  not  a  contract  for  any  interest  in  lands,  though  the  vendee  is 
to  enter  and  gather  them,  2nd,  A  sale  of  any  growing  produce 
of  the  earth,  reared  annually  by  labor  and  expense,  and  in  actual 
existence  at  the  time  of  the  contract,  as  for  instance  a  growing 
crop  of  corn,  hops,  potatoes,  or  turnips,  is  not  within  the  4th  sec- 
tion, though  the  purchaser  is  to  harvest  or  dig  them.  3rd.  An 
agreement  respecting  the  sale  of  a  growing:  jsrop  of  fruit,  -or  grass, 
or  of  standing  underwood^,  growing  poles  or  timber,  i&  within  the 
4th  section,  anH  a  \rrittpn  r^rtr^^t  ■Q.f_sqlp  cannot  be  dispensed  with. 
""However  sound  his  1st  and  2nd  propositions,  we  think  his  3rd 
is  to  be  taken  with  some  qualification — and  that  a  growing  crop 
of  peaches  or  other  fruit,  requiring  periodical  expense,  industry 
and  attention,  in  its  yield  and  production,  may  be  well  classed  as 
fructus  industriales  and  not  subject  to  the  4th  section  of  the  Statute. 

Brown  on  Statute  of  Frauds,  in  sections  236,  237,  246,  247  and 
249,  and  Greenleaf 's  Ev.  1  vol.,  sec.  271,  have  furnished  from  the 
adjudged  cases,  a  construction  more  in  consonance  with  our  views 
upon  the  subject,  and  is  substantially  to  the  following  effect: 
There  is  nothing  in  the  vegetable  or  fruit  which  is  an  interest  in, 
or  concerning  land,  when  severed  from  the  soil,  whether  trees, 
grass  and  other  spontaneous  growth  (prima  vestura)  or  grain, 
vegetables,  or  any  kind  of  crops  (fructus  industriales),  the  product 
of  periodical  planting  and  culture;  they  are  alike  mere  chattels, 
and  the  severance  may  be  in  fact,  as  when  they  are  cut  and 
removed  from  the  ground ;  or  in  law,  as  when  they  are  growing, 
the  owner  in  fee  of  the  land,  by  a  valid  conveyance,  sells  them  to 
another  person,  or  where  he  sells  the  laud,  reserving  them  by 
express  provision. 

As  a  general  rule,  if  the  products  of  the  earth  are  sold  spe- 
cifically, and  by  the  terras  of  the  contract  to  be  separately 
delivered,  as  chattels,  such  a  sale  is  not  affected  by  the  4th  section 
of  the  Statute,  as  amounting  to  a  .sale  of  any  interest  in  the  land. 
When  such  is  the  character  of  the  transaction,  it  matters  not 
whether  the  product  be  trees,  grass  and  other  spontaneous  growth, 
or  grain,  vegetables,  or  other  crops  raised  periodically  by  cultiva- 
tion— and  it  is  quite  as  immaterial  whether  the  produce  is  fully 
grown  or  in  the  process  of  growing,  at  the  time  of  making  the 
contract. 

The  circumstance  that  the  produce  purchased  may,  or  probably, 


u 


100  Cases  on  Personal.  Property 

or  certainly  will  derive  nourishment  from  the  soil  between  the 

time  of  the  contract  and  the  time  of  the  delivery,  is  not  conclusive 

as  to  the  operation  of  the  Statute. 

/'"  If  the  contract,  when  executed,  is  to  convey  to  the  purchaser  a 

I  mere  chattel,  though  it  may  be  in  the  interim  a  part  of  the  realty, 

\  it  is  not  affected  by  the  Statute;  but  if  the  contract  is,  in  the 

/  interim,  to  confer  upon  the  purchaser  an  exclusive  right  to  the 

\  land  for  a  time,  for  the  purpose  of  making  a  profit  of  the  growing 

/surface,  it  is  affected  by  the  Statute,   and  must  be  in  writing, 

I  although  the  purchaser  is  at  the  last  to  take  from  the  land  only 

\a,  chattel. 

To  put  a  reasonable  construction  upon  the  terms  of  the  4th 
section  of  the  Statute,  from  the  evidence  in  this  case,  it  is  clear 
the  contract  in  question  is  not  within  its  meaning.  It  had  been 
executed  by  the  plaintiff,  and  the  fruit  had  been  gathered,  and  in 
fact  paid  for  at  the  time  of  the  suit. 

It  was  in  proof  that  a  part  of  the  fruit  was  prematurely  ripe, 
at  the  time  of  the  contract. 

It  would  be  a  perversion  of  the  objects  of  the  Statute  to  hold 
as  invalid,  the  sale,  in  other  respects  legal,  of  the  growing  crop 
of  peaches,  with  no  intent  of  the  parties,  to  sell  or  purchase  the 
soil,  but  affording  a  mere  license,  express  or  implied,  to  the  pur- 
chaser to  go  upon  the  land,  to  gather  the  fruit  and  remove  the 
same.  Substantially,  to  use  the  language  of  sec.  271,  of  1  Green- 
leaf's  Ev.,  the  transaction  takes  its  character  of  realty  or  per- 
sonalty from  the  principal  subject-matter  of  the  contract,  and 
the  interest  of  the  parties,  and,  therefore,  a  sale  of  any  growing 
produce  of  the  earth,  in  actual  existence,  at  the  time  of  the  con- 
tract, whether  it  be  in  a  state  of  maturity  or  not,  is  not  to  be 
considered  a  sale  of  an  interest  in,  or  concerning  the  land.  "Where 
timber  or  other  produce  of  the  land,  or  any  other  thing  annexed 
to  the  freehold,  is  specifically  sold,  whether  to  be  severed  from 
tFe  soil  by  the  vendor,  or  to  be  taken  by  the  vendee,  under  _a 
special  license  to  enter  for  that  purpose,  it  is  still,  in  contempla- 
tion  of  the  parties,  a  sale  of  goods  only,  and  n-^t  within  the  Statute. 

Judgment  affirmed?^ 

25  See  Childs '  Personal  Property,  §  27. 


Chattels  Re.vl  101 

Hops.  ^ 

FRANK  V.  HARRINGTON. 

36  Barh.  (N.  Y.)  415.     1862. 
The  facts  are  stated  in  the  opinion. 

By  the  Court,  Morgan,  J. — The  question  is  whether  hops, 
growing  and  maturing  on  the  vines,  are  real  or  personal  property. 

Wlien  the  argument  was  opened,  I  supposed  that  perhaps  the 
decision  of  this  question  was  involved  in  the  judgment  of  the  court 
of  appeals  in  Bishop  v.  Bishop  ( 11  N.  Y.  Rep.  123 ) .  But  the  counsel 
on  both  sides  treat  that  case  as  one  which  depends  upon  other 
considerations,  and  not  necessarily  involved  in  the  decision  of 
this.  The  question  there  was  whether  hop  poles  were  real  or 
personal  property ;  and  they  were  declared  to  be  real  estate,  because 
they  were  "habitually  attached  to  the  land,"  although  "not  con- 
stantly fastened  to  it."  Gardiner,  Ch.  J,,  who  delivered  the 
opinion  of  the  majority  of  the  court,  obsen^ed,  however,  that  "the 
root  of  the  hop  is  perennial,  continuing  for  a  series  of  years.  That 
this  root  would  pass  to  the  purchaser  of  the  real  estate,  there  can  be 
no  question." 

It  is  conceded  in  the  very  learned  argument  of  the  plaintiff's 
counsel  in  this  case,  that  the  root  of  the  hop  is  real  estate;  but 
he  contends  that  the  crop  itself,  like  grain,  is  personal  property. 
And  to  this  point  he  cites  Latham  v.  Atwood  (Croke  Charles,  515), 
The  report  of  that  case  states  that  the  question  was,  "whether  these 
hops  appertained  to  the  baron  or  to  him  in  remainder."  And  the 
court  held  that  "they  be  like  emblements  which  shall  go  to  the 
baron  or  executor  of  the  tenant  for  life,  and  not  to  him  in  re- 
mainder; and  are  not  to  be  compared  to  apples  or  roots  which 
grow  of  themselves;  wherefore  adjudged  for  the  plaintiff." 

The  same  resolution  was  come  to  in  an  anonymous  case  reported 
in  2  Freeman's  Reports  of  Cases  in  Law  and  Equity,  210;  and 
afterwards  in  Fisher  and  Forbes,  referred  to  in  9  Viner,  373,  pi.  82. 
And  according  to  9  Viner,  372,  pi.  77,  "hops  growing  out  of  old 
roots  shall  go  to  the  executor  or  administrator,  because  they  grow 
by  the  manurance  and  industry  of  the  owner,  and  so  are  emble- 
ments." 

The  same  law  is  declared  in  3  Bacon's  Ab.  tit.  Fx'rs  and  Adm'rs, 
(h),  p.  493.     And  such  is  the  statement  of  several  other  authors 


102  Cases  on  Personal.  Property 

who  undertake  to  give  the  rule  as  it  was  understood  to  exist  in 
England  prior  to  our  revolution.  Most  of  these  authors  refer  to 
the  case  of  Latham  v.  Atwood  as  authority.  The  reason  of  the 
rule,  as  stated  in  the  report  of  that  case,  is  that  "they  (hops)  be 
such  things  as  grow  by  manurance  and  industry  of  the  owner, 
by  the  making  of  hills  and  setting  poles."  The  plaintiff's  counsel 
have  also  referred  to  some  late  English  decisions  which,  without 
deciding  the  question,  recognize  the  law  as  laid  down  by  the  court 
in  Latham  v.  Atwood.  (See  Evans  v.  Roberts,  5  B.  &  C.  829,  and 
•Graves  v.  Weld,  5  B.  &  Ad.  105.) 

The  reason  given  by  the  court  in  Latham  v.  Atwood  for  holding 
hops  to  be  personal  instead  of  real  estate,  is  very  satisfactory. 
It  is  well  known  that  the  value  of  the  crop  depends  in  a  very  great 
measure — almost  entirely — upon  the  "manurance  and  industry  of 
the  owner;"  and  like  other  annual  crops,  which  depended  upon 
yearly  cultivation,  should  go  to  enhance  the  personal  estate. 

The  defendant's  counsel  has  submitted  a  very  ingenious  argu- 
ment, the  principal  point  of  which  is  to  show  that  hops  are  natural 
products  of  the  earth ;  and  as  such,  real  estate,  like  growing  trees, 
grass,  and  fruit.  As  an  original  question  his  argument  would  be 
very  satisfactory  to  prove  that  strawberries  and  grapes,  as  now 
cultivated,  grow  by  the  .same  "manurance  and  industry  of  the 
owner,"  as  hops,  and  should  be  put  in  the  same  category;  although 
the  result  would  be  that  they  too  ought  to  be  treated  as  personal 
instead  of  real  estate. 

The  decisions  are  not  uniform  as  to  the  rule  which  should  dis- 
tinguish between  real  and  personal  property,  within  the  meaning 
of  the  statute  of  frauds.  In  some  cases  it  is  held  that  grass  is 
personal  property,  if  sold  in  prospect  of  separation  from  the  free- 
hold. (Roberts  on  Frauds,  126.)  But  the  majority  of  the  cases 
hold  that  if  the  subject  grows  spontaneously,  without  cultivation, 
or  annual  cultivation,  it  is  a  part  of  the  realty.  (6  East  602; 
1  Barb.  542;  1  Denio  550;  6  Gill  &  J.  188.)  Such  undoubtedly 
were  the  views  of  the  revisers  when  they  recommended  the  legis- 
lature to  enact  the  provision.s  contained  in  the  revised  statutes, 
declaring  the  following,  among  other  things,  to  be  assets,  viz. : 
"Crops  growing  on  the  land  of  the  deceased  at  the  time  of  his 
death,"  and  "any  kind  of  produce  raised  annually  by  labor  and 
cultivation,  except  grass  growing  or  fruit  not  gathered."  (2  R.  S. 
83,  Par.  5,  6.)  They  state  that  their  object  was  "to  enumerate 
those  articles  which  are  likely  to  occasion  doubt,  to  settle  some 
disputed  cases,  and  yet  to  include  everything  which  ought  to  be 


Chattels  Real  103 

included,  by  the  use  of  general  terms,  to  protect  the  heir."    (3  R.  S. 
2d  ed.,  p.  639.)     It  will  readily  be  seen  that  the  rule  must  be  more 
or  less  arbitrary  in  relation  to  fruit,  as  much  of  it  is  grown  by 
great  annual  labor,  while  some  of  it  requires  cultivation.    The  rule 
can  hardly  be  made  to  change,  so  to  meet  the  varying  changes 
which  occur  in  the  cultivation  of  these  natural  productions.     As 
the  value  of  the  hop  depends_sa  p.'^spntialjy  upmi-manurance  and, 
annual  cultivation,  therejs  no  reason  why  it  shQuld_-ha. taken  out 
of_the_category..of  J.' produce  raised  annually  by  labor,  and  cultiva-_ 
tion/'  by  any  new  interpretation  of  the  statute  of  frauds.    It  would 
be  more  just  to  the  rights  of  parties  to  take  certain  varieties  of 
fruits  from  the  statute  definition  and  call  them  assets;  as  their 
value  and  quantity  depend  almost  altogether  upon  manurance  and 
annual  cultivation ;  especially  the  grape  and  strawberry.    It  requires 
but  little  soil  to  raise  them,  and  in  other  respects  they  are  produced 
by  personal  labor  and  at  the  expense  of  the  personal  rather  than 
of  the  real  estate  of  the  owner.     And  to  produce  uniformity  and 
prevent  confusion,  these  various  productions  of  the  soil  should,  if 
consistent  with  the  decisions  of  the  courts  in  other  cases,  be  treated 
as  real  or  personal  property,  whether  the  question  arises  between 
the  heir  and  executor,  or  between  the  debtor  and  creditor,  or  within 
the  definition  of  the  statute  of  frauds.    The  statute  being  silent 
as  to  hops,  we  must  decide  this  question  upon  authority  independent 
of  the  statute.     I  have  already  referred  to  the  English  decisions, 
which  put  them  in  the  category  of  personal  property,  and  the 
reasons  which  influenced  the  court  in  coming  to  that  conclusion. 
And  I  have  expressed  my  satisfaction  w'itli  the  reasons  as  given 
in  the  original  case  of  Latham  v.  Atwood  (Croke  Charles,  515). 
The  defendant 's  counsel  has,  by  great  research,  found  several  cases 
which  he  thinks  overrule  the  decision  of  the  court  in  Latham  v. 
Atwood.     The  fir.st  case  cited  by  him  is  Woddington  v.  Bristow 
(2  Bos.  &  P.  452).     But  the  hops  which  were  the  subject  of  the 
contract  in  that  case  were  not  yet  growing  upon  the  vines.    They 
were  not  in  esse  at  the  time  the  contract  was  made,  and  therefore 
not  the  subject  of  sale.    And  such  is  the  statement  of  the  case  by 
the  judges.    The  case  of  Latham  v.  Atwood  was  not  even  alluded 
to.     The  case  of  Emmerson  v.   Ileolis    (2  Taunton  38)    is  more 
to  the  point.     That  was  a  sale  of  turnips  in  the  "ground,  and 
the  court  held  that  it  was  a  sale  of  an  interest  in  land  and  must  be 
in  wanting.    ^Mansfield,  Ch.  J.,  said  he  could  not  distinguish  it  from 
the  case  of  hops.    But  the  case  docs  not  profess  to  overrule  Latham 
V.  Atwood,  and  the  decision  is  wholly  irreconcilable  with  subsequent 


104  Cases  on  Personal.  Property 

English  cases  and  the  decisions  of  our  own  courts,  without  excep- 
tion, so  far  as  they  have  come  under  my  observation.  The  decision 
of  the  court  in  Parker  v.  Standard  (11  East  362),  Crosby  v.  Wads- 
worth  (6  id.  602),  S.  C.  (2  Smith  559),  approve  of  the  case  of 
Woddingtou  v.  Bristow  (2  Bos.  &  Pul.  452),  but  upon  grounds 
which,  at  the  present  day,  are  not  regarded  as  authority.  (See 
Green  v.  Armstrong,  1  Denio  550,  555,  6;  Mumford  v.  "Whitney, 
15  AVend.  380,  386,  7.)  The  case  of  AVoddington  v.  Bristow  was 
again  under  review  in  the  English  courts  in  Jones  v.  Flint  (10  Ad. 
&  El.  753,  759),  and  it  was  said  by  the  judge  (Lord  Denman, 
Ch.  J),'w^ho  delivered  the  opinion  of  the  court,  that  it  was  "very 
difficult  to  reconcile  all  the  cases,  and  still  more  so  all  the  dicta  on 
the  subject,  from  the  case  of  AVoddington  v.  Bristow  to  the  present 
time,  and  we  are  therefore  left  at  liberty  to  abide  by  a  general 
principle."  The  judge  observed:  "AVe  agree  that  the  safer 
grounds  of  decision  are  the  legal  character  of  the  principal  subject 
matter  of  sale,  and  the  consideration  whether  in  order  to  effectuate 
the  intentions  of  the  parties,  it  be  necessary  to  give  the  vendee  an 
interest  in  the  land."  And  he  refers  with  approval  to  the  case 
of  Evans  v.  Roberts  (5  B.  &  C.  829,  837,  840),  where  Littledale,  J., 
says:  "I  think  a  sale  of  any  growing  produce  of  the  earth  (reared 
by  labor  and  expense)  in  actual  existence  at  the  time  of  the  con- 
tract, whether  it  be  in  a  state  of  maturity  or  not,  is  not  to  be  con- 
sidered a  sale  of  an  interest  in  or  concerning  land,  within  the 
meaning  of  the  4th  section  of  the  statute  of  frauds. ' '  It  was  held 
in  Jones  v.  Flint  that  corn  and  potatoes  were  goods  and  chattels 
within  the  meaning  of  the  statute  of  frauds,  and  for  the  reason  that 
they  are  f  met  us  industriales,  while  grass  is  not.  (Id.,  p.  758.) 
This  is  the  same  reason  given  in  Latham  v.  Atwood  for  holding 
that  hops  growing  and  maturing  on  the  vines  are  chattels  personal 
and  not  chattels  real. 

In  my  opinion,  therefore,  hops,  growing  and  maturing  on  the 
vines,  which  are  produced  by  annual  cultivation  and  the  industry 
of  the  owner,  are  personal  chattels  within  the  meaning  of  the 
statute  of  frauds,  "^d  as  such  subject  to  sale  like  other  personal 
property. 

A  new  trial  should  be  granted ;  costs  to  abide  the  event. 

New  trial  granted?^ 

26  Trees  reared  in  nursery  ground,  expressly  for  sale  as  merchandise,  usually 
regarded  as  personalty.  Hamilton  v.  Austin  et  al.,  36  Hun.  (N.  Y.)  139  (43 
N.  Y.  Supp.  139). 

See  Childs'  Personal  Property,  §27. 


Chattels  Real  105 

Ice. 
WASHINGTON  ICE  COMPANY  v.  SHORTALL. 
101  III.  46,  40  Am.  Rep.  196.    1881. 
The  facts  are  stated  in  the  opinion. 

Mr.  Justice  Sheldon — This  was  an  action  of  trespass  quare 
clansiim  fregit,  brought  in  the  Circuit  Court  of  Cook  county  by 
Shortall,  against  the  Washington  Ice  Company,  for  cutting,  remov- 
ing and  appropriating,  in  January  and  February,  1879,  a  quantity 
of  ice  which  had  formed  over  the  bed  of  the  Calumet  river,  within 
the  limits  of  plaintiff's  land,  in  Cook  county.  Defendant  pleaded 
the  general  issue,  and  liberum  tenementum.  A  verdict  and  judg- 
ment were  rendered  in  favor  of  plaintiff  for  $562.40,  which  judg- 
ment, on  appeal  to  the  Appellate  Court  for  the  First  District,  was 
affirmed,  and  defendant  appealed  to  this  court. 

On  the  trial,  the  patent  from  the  United  States  to  Lafrombois 
and  Decant  was  introduced  in  evidence,  showing  that  there  was  no 
restriction  or  reservation  by  the  government,  and  that  the  locus  in 
quo  was  embraced  in  the  125  31/100  acres  the  patent  conveyed. 
Under  this  patent  plaintiff  derived  title. 

From  the  evidence  it  appears  that  the  call  of  125  31/100  acres 
contained  in  the  patent  required  that  the  bed  of  the  river  should 
be  included  to  make  that  quantity ;  that  the  Calumet  river,  extend- 
ing from  Lake  Michigan  westward  past  the  plaintiff's  premises, 
where  it  is  between  165  and  200  feet  wide,  is  in  fact  a  navigable 
river;  that  the  defendant  company  owned  ice-houses  on  its  own 
property  on  the  next  lot  east  of  plaintiff's,  and  that  in  operating 
on  the  ice  it  did  not  go  on  the  plaintiff's  land,  save  as  it  entered 
upon  the  ice;  that  it  first  gathered  the  ice  in  front  of  its  own  land 
from  the  river,  and  then  commenced  to  take  the  ice  opposite  the 
plaintiff's  premises. 

The  court,  at  plaintiff's  request,  instructed  the  jury  that  the 
plaintiff  was  the  owner  of  the  whole  bed  of  the  river  flowing 
through  his  premises;  that  when  the  water  became  congealed,  the 
ice  attaching  to  tho  soil  fonslituted  a  part  thereof,  and  belonged  to 
the  owner  of  the  bed  of  the  stream,  and  that  he  could  maintain 
trespass  for  the  wrongful  entry  and  taking  the  ice ;  and  that  the 
nioasurc  of  damages,  in  case  of  a  finding  for  plaintiff,  would  be 
the  value  of  the  ice  as  soon  as  it  existed  as  a  chattel — that  is,  as 


106  Cases  on  Personal.  Property 

soon  as  it  had  been  scraped,  plowed,  sawed,  cut  and  severed,  and 
ready  for  removal.     *     *     * 

It  may  be  well  to  inquire,  first,  whether  plaintiff,  as  riparian 
proprietor  on  both  sides  of  the  Calumet  river,  is  the  owner  of  the 
bed  of  the  stream  within  the  limits  of  his  land.  By  the  common 
law,  only  arms  of  the  sea,  and  streams  where  the  tide  ebbs  and 
flows,  are  regarded  navigable.  The  stream  above  the  tide,  although 
it  may  be  navigable  in  fact,  belongs  to  the  riparian  proprietors  on 
leach  side  of  it  to  its  centre,  and  the  only  right  the  public  has 
therein  is  an  easement  for  the  purpose  of  navigation.     *     *     * 

This  rule  of  the  common  law  has  been  adopted  in  this  State,  and 
is  here  the  settled  doctrine.  It  was  so  held  in  Middleton  v. 
Pritchard,  3  Scam.  510,  and  Houck  v.  Yates,  82  111.  179,  with 
regard  to  the  Mississippi  river  where  it  bounds  this  State ;  in 
Braxon  v.  Bressler,  64  111.  488,  as  to  Rock  river ;  City  of  Chicago  v. 
Laflin,  49  111.  172,  and  City  of  Chicago  v.  McGinn,  51  111.  266,  in 
regard  to  the  Chicago  river. 

The  Calumet  river  then  being  non-tidal,  and  plaintiff  owning 
lands  on  both  sides  of  it,  he  is  the  owner  of  the  whole  of  the  bed 
of  the  stream  to  the  extent  of  the  length  of  his  lands  upon  it. 

The  next  question  respects  the  ownership  of  ice  formed  over  the 
bed  of  the  river  passing  through  the  land.  It  is  objected  by 
defendant  that  water  in  a  running  stream  is  not  the  property  of 
any  man, — that  no  proprietor  has  a  property  in  the  water  itself, 
but  a  simple  usufruct  while  it  passes  along;  but  manifestly  differ- 
ent considerations  apply  to  water  in  a  running  stream  when  in  a 
liquid  state  and  when  frozen. 

In  Agawam  Canal  Co.  v.  Edwards,  36  Conn.  497,  it  is  said :  "The 
principle  contained  in  the  maxim,  '  cujus  est  solum  ejus  est  usque 
ad  ccelum,'  gives  to  a  riparian  owner  an  interest  in  a  stream  which 
runs  over  his  land.  But  it  is  not  a  title  to  the  water, — it  is  a  usufruct 
merely, — a  right  to  use  it  while  passing  over  the  land.  The  same 
right  pertains  to  the  land  of  every  other  riparian  proprietor  on 
the  same  stream  and  its  tributaries ;  and  as  each  has  a  similar  and 
equal  usufructuary  right,  the  common  interest  requires  that  the 
right  should  be  exercised  and  enjoyed  by  each  in  such  a  reasonable 
manner  as  not  to  injure  unnecessarily  the  right  of  any  other  owner, 
above  or  beloM^" 

It  will  thus  be  seen  that  the  riparian  owner,  as  such,  has  rights 
with  respect  to  water  in  a  running  stream, — he  has  a  right  of  use, 
which  right  authorizes  the  actual  taking  of  a  reasonable  quantity 
of  the  water  for  his  purposes.    The  limitation  in  extent  of  the  use 


Chattels  Real.  107 

of  the  water  is,  that  it  shall  not  interfere  with  the  public  right  of 
navigation,  nor  in  a  substantial  degree  diminish  and  impair  the 
right  of  use  of  the  water  by  a  lower  or  upper  proprietor  as  it 
passes  along  his  laud.  The  only  opposing  rights  are  such  rights 
of  the  public,  and  such  upper  and  lower  proprietors.  But  when 
the  water  becomes  congealed,  and  is  in  that  state,  these  opposite 
rights  are  in  nowise  concerned.  The  ice  may  be  used  and  appro- 
priated without  detriment  to  the  right  of  navigation  by  the  public, 
or  to  other  riparian  owners'  right  of  use  of  the  water  of  the  stream 
when  flowing  over  their  land.  The  just  and  reasonable  use  of  the 
water  which  belongs  to  the  riparian  proprietor  would  be,  in  such 
case  of  congealed  state  of  the  water,'  the  unlimited  use  and  appro- 
priation of  the  ice  by  him,  as  it  would  be  no  interference  with  rights 
of  others.  We  are  of  opinion  there  is  such  latter  right  of  use,  and 
that  it  should  be  held  property,  of  which  the  riparian  owner  can 
not  be  deprived  by  a  mere  wrongdoer.  A\nien  water  has  congealed 
and  become  attached  to  the  soil,  why  should  it  not,  like  any  other 
accession,  be  considered  part  of  the  realty?  Wherein,  in  this 
regard,  should  the  addition  of  ice  formed  over  the  bed  of  a  stream 
be  viewed  differently  from  allu"\don,  which  is  the  addition  made 
to  land  by  the  washing  of  the  sea  or  rivers?  And  we  do  not  per- 
ceive why  there  is  not  as  much  reason  to  allow  to  the  riparian  owner 
the  same  right  to  take  ice  as  to  take  fish,  which  latter  is  an  exclusive 
right  in  such  owner. 

Ice,  from  its  general  use,  has  come  to  be  a  merchantable  com- 
modity of  value,  and  the  traffic  in  it  a  quite  important  business. 
It  would  not  be  in  the  interest  of  peace  and  good  order,  nor  con- 
sistent with  legal  policy,  that  such  an  article  should  be  held  a  thing 
of  common  right,  and  be  left  the  subject  of  general  scramble,  lead- 
ing to  acts  of  force  and  violence.     *     *     * 

The  views  we  hold  are  in  accordance  with  the  holding  in  The 
State  V.  Pottmeyer,  33  Ind.  402,  that  when  the  water  of  a  flowing 
stream  running  in  its  natural  channel  is  congealed,  the  ice  attached 
to  the  soil  constitutes  a  part  of  the  land,  and  belongs  to  the  owner 
of  the  bed  of  the  stream,  and  he  has  the  right  to  prevent  its  removal. 
See  further,  relative  to  the  subject,  Myer  v.  Whitakcr,  55  How.  Pr. 
Rep.  376;  Lorman  v.  Benson,  8  Mich.  18;  Mill  River  Woolen  Manu- 
facturing Co.  v.  Smith,  34  Conn.  462 ;  Brown  v.  Brown,  30  N.  Y.  519. 

Defendant  claims  that  it  committed  no  trespass  in  taking  the 
ice,  because  the  ice  in  the  midst  of  a  .stream  navigable  in  fact,  is 
naturally  an  obstruction  to  navigation,  and  that  any  one  has  the 
right,  having  obtain(,'d  access  indopondent  of  the  riparian  owner, 


108  Cases  on  Personal  Property 

to  enter  upon  the  ice  and  remove  it.  "We  said  in  Braxon  v.  Bressler, 
above  cited:  "Where  the  river  is  navigable,  the  public  have  an 
easement  or  a  right  of  passage  upon  it  as  a  highway,  but  not  the 
right  to  remove  the  rock,  gravel  or  soil,  except  as  necessary  to  the 
enjoyment  of  the  easement."  The  same  is  to  be  said  as  to  the  ice 
here.  But  it  was  not  removed  as  necessary  for  the  enjoyment  of 
the  public  easement  of  navigation, — it  was  for  the  purpose  only  of 
the  appropriation  of  it  for  defendant's  gain. 

Perceiving  no  error  in  the  giving  or  refusing  of  instructions  by 
the  circuit  court,  the  judgment  of  the  appellate  court  is  affirmed. 

Judgment  affirmed?'^ 


HIGGINS  V.  KUSTERER. 
41  Mich.  318,  2  N.  W.  13.    1879. 
The  facts  are  stated  in  the  opinion. 

Campbell,  C.  J. — Higgins  recovered  below  a  judgment  against 
Kusterer  for  the  value  of  a  quantity  of  ice.  Kusterer  claims  that 
title  never  passed  to  Higgins,  and  that  the  property  was  lawfully 
acquired  by  himself  from  one  Loder,  who  cut  it  on  a  pond  belong- 
ing to  one  Coats  and  sold  it  to  defendant. 

The  facts  are  briefly  these:  The  ice  in  question  was  formed 
upon  water  which  had  spread  over  a  spot  of  low  ground  partly 
belonging  to  Hendrick  Coats,  forming  a  basin,  the  land  being  dry 
in  summer,  and  in  the  rest  of  the  year  overflowed  from  a  small 
brook  leading  into  it.  After  the  ice  formed,  and  in  February,  1878, 
Coats,  by  a  parol  bargain,  sold  all  the  ice  in  his  part  of  the  basin  to 
Higgins,  for  fifty  cents.  The  parties  at  the  time  stood  near  by,  in 
view  of  the  ice,  and  the  quantity  sold  was  pointed  out,  and  the 
money  paid.    The  ice  was  then  all  uncut. 

About  two  weeks  thereafter  John  Loder,  knowing  that  Higgins 
had  purchased  and  claimed  the  ice,  and  having  been  warned  thereof 
by  Coats,  offered  Coats  five  dollars  for  the  ice,  which  Coats  accepted, 
and  Loder  cut  it  and  sold  it  to  Kusterer,  who  had  made  a  previous 
verbal  contract  with  Loder  for  it.  Higgins  was  present  when  the 
ice  was  loaded  on  Kusterer's  sleigh,  and  forbade  the  loading  and 
removal,  on  the  ground  that  he  had  purchased  it  from   Coats. 

27  See  Childs'  Personal  Property,  §  30. 


Chattels  Real  109 

Kusterer  referred  the  matter  to  Coats,  who  said  he  had  sold  it 
to  Loder. 

The  only  question  presented  is  whether  Higgins  was  owner  of 
the  ice. 

The  case  was  argued  very  ably  and  very  fully,  and  the  whole 
subject  of  the  nature  of  ice  as  property  w'as  discussed  in  all  its 
bearings.  "We  do  not,  however,  propose  to  consider  any  question 
not  arising  in  the  case. 

The  record  is  free  from  any  complications  which  might  arise 
under  the  circumstances.  There  are  no  conflicting  purchasers  in 
good  faith  without  notice,  Loder  and  Kusterer  had  full  notice  of 
the  claims  of  Higgins  before  they  expended  any  money.  The  sale 
to  Higgins  was  not  a  sale  of  such  ice  as  might  from  time  to  time  be 
formed  on  the  pond,  but  of  ice  which  was  there  already,  and  which 
if  not  cut  would  disappear  with  the  coming  of  mild  weather  and 
have  no  further  existence.  It  was  not  like  crops  or  fruit  connected 
with  the  soil  by  roots  or  trees,  through  which  they  gained  nourish- 
ment before  maturity.  It  was  only  the  product  of  running  water,' 
a  portion  of  which  became  fixed  by  freezing,  and  if  not  removed  in 
that  condition  would  lose  its  identity  by  melting.  In  its  frozen 
condition  it  drew  nothing  from  the  land,  and  got  no  more  support 
from  it  than  a  log  floating  on  the  water  would  have  had. 

It.s  only  value  consists  in  its  disposable  quality  as  capable  of 
removal  from  the  water  while  solid,  and  of  storage  where  it  might 
be  kept  in  its  solid  state,  which  could  not  be  preserved  without  such 
removal.    If  left  where  it  was  found  it  would  disappear  entirely. 

"While  we  think  there  can  be  no  doubt  that  the  original  title  to 
ice  must  be  in  the  possessor  of  the  water  where  it  is  formed,  and 
while  it  would  pa.ss  with  that  possession,  yet  it  seems  absurd  to  hold 
that  a  production  which  can  have  no  use  or  value  except  as  it  is 
taken  away  from  the  water,  and  which  may  at  any  time  be  removed 
from  the  freehold  by  the  moving  of  the  water,  or  lose  existence 
entirely  by  melting,  should  be  classed  as  realty  instead  of  person- 
alty, when  the  owner  of  the  freehold  chooses  to  sell  it  by  itself. 
When  once  .severed  no  skill  can  join  it  again  to  the  realty.  It  has 
no  more  organic  connection  with  the  estate  than  anytliing  else  that 
floats  upon  the  water.  Any  breakage  may  sweep  it  down  the 
stream  and  thus  cut  off  the  property  of  the  freeholder.  It  has 
less  prominence  than  any  crop  that  is  raised  upon  the  land,  and 
its  detention  in  any  particular  spot  is  liable  to  be  broken  by  many 
acfidents.  It  must  be  gathered  while  fixed  in  place,  or  not  at  all, 
and  can  only  be  kept  in  existence  by  cold  weather.    In  the  present 


110  Cases  on  Personal  Property 

case  the  peculiar  situation  of  the  pond  rendered  it  likely  that  the 
ice  could  not  float  away  until  nearly  destroyed,  but  it  could  not  be 
preserved  from  the  other  risks  and  incidents  of  its  precarious 
existence.  Any  storm  or  shock  might  in  a  moment  convert  it  into 
floating  masses  which  no  ingenuity  of  black-letter  metaphysics 
could  annex  to  the  freehold. 

It  does  not  seem  to  us  that  it  would  be  profitable  to  attempt  to 
determine  such  a  case  as  the  present  by  applying  the  inconsistent 
and  sometimes  almost  whimsical  rules  that  have  been  devised  con- 
cerning the  legal  character  of  crops  and  emblements.  Ice  has  not 
been  much  dealt  with  as  property  until  very  modern  times,  and 
no  settled  body  of  legal  rules  has  been  agreed  upon  concerning  it. 
So  far  as  the  principles  of  the  common  law  go,  they  usually,  if  not 
universally,  treated  nothing  movable  as  realty  unless  either  perma- 
nently or  organically  connected  ^^^th  the  land.  The  tendency  of 
modern  authority,  especially  in  regard  to  modern  fixtures,  has  been 
to  treat  such  property  according  to  its  purposes  and  uses,  as  far 
as  possible. 

The  ephemeral  character  of  ice  renders  it  incapable  of  any  per- 
manent or  beneficial  use  as  part  of  the  soil,  and  it  is  only  valuable 
when  removed  from  its  original  place.  Its  connection,  if  its  position 
in  the  w^ater  can  be  called  a  connection,  is  neither  organic  nor 
lasting.  Its  removal  or  disappearance  can  take  nothing  from  the 
land.  It  can  only  be  used  and  sold  as  personalty,  and  its  only  use 
tends  to  its  immediate  destruction.  We  think  that  it  should  be 
dealt  with  in  law  according  to  its  uses  in  fact,  and  that  any  sale  of 
ice  ready  formed,  as  a  distinct  commodity,  should  be  held  a  sale 
of  personalty,  whether  in  the  water  or  out  of  the  water. 

"We  shall  not  attempt  to  discuss  cases  where  the  bargain  includes 
future  uses  of  land  and  water,  and  interests  in  ice  not  yet  frozen. 
Whether  such  dealings  are  to  be  regarded  as  leases,  or  licenses,  or 
executory  sales,  may  be  properly  discussed  when  they  occur.  We 
think  the  sale  in  the  present  case  was  rightly  held  to  be  a  sale  of 
personalty.    The  judgment  must  be  affirmed,  with  costs. 

(The  other  justices  concurred. )28 

28  See  Childs'  Personal  Property,  §30. 


Chattels  Real  111 

^  BIGELOW  V.  SHAW  et  al. 

65  MicJu  341,  32  N.  W.  800.     1887. 

The  facts  are  stated  in  the  opinion. 

Morse,  J. — This  action  was  brought  in  justice's  court  to  recover 
damages  against  the  defendants  for  entering  upon  a  frozen  mill- 
pond  upon  her  lands,  and  cutting  and  removing  ice  during  the 
winter  of  1884  and  1885.     The  defendants  gave  notice  that  the 
title  to  the  land  would  come  in  question,  and  filed  the  bond  required 
by  the  statute  in  such  case.     Thereupon  the  justice  certified  the  •*> 
cause  to  the  circuit  court  for  the  county  of  Mecosta,  where   a  n 
trial  was  had,  and  judgment  rendered  for  the  plaintiff  for  the  \ 
sum  of  $50. 

The  circuit  judge,  Hon.  C.  C.  Fullee,  filed  a  written  finding  of 
the  facts  upon  which  he  based  his  judgment.  This  finding  shows 
that  the  defendants,  under  a  lease  from  Edward  P.  Shankwiler 
and  David  L,  Garling,  went  upon  that  portion  of  a  mill-pond  which 
set  back  upon  defendant's  lands,  and  cut  and  carried  away  and 
disposed  of  for  their  OM'n  use  200  cords- of  ice,  the  value  of  which, 
as  it  lay  in  the  pond,  was  $50.  The  mill-pond  was  formed  by 
building  a  dam  across  Ryan  creek,  a  small  stream,  not  meandered 
and  emptying  into  the  Muskegon  river.  The  dam  was  built  in  1866 
by  John  Bigelow,  the  husband  of  the  plaintiff.  He  then  owned  the 
N.  W.  I  of  the  N.  W.  i,  and  the  N.  E.  ^  of  the  N.  W.  I,  and  lot 
number  2,  of  section  24,  and  the  S.  E.  ^  of  the  S.  W.  \  of  section 
13,  all  in  to^\^lship  15  N.,  of  range  10  W.,  in  the  county  of  Mecosta, 
IMichigan.  Ryan  creek  entered  these  lands  on  section  13,  and  ran 
through  both  the  N.  E.  and  the  N.  "W.  quarters  of  the  N.  W.  \  of 
24.  Bigelow  erected  this  dam  for  the  purpose  of  ponding  the 
water  to  obtain  power  to  run  and  operate  a  flouring-mill  on  section 
24.  In  1873  the  plaintiff  joined  in  a  mortgage  with  her  husband, 
executed  by  him  to  the  Albion  College  Endowment  Fund  Company, 
upon  the  N.  E.  \  of  the  N.  W.  \,  and  said  lot  2,  of  section  24.  This 
mortgage  also  conveyed  the  right  of  flowage  to  raise  the  water  in 
the  flume  at  the  mill  10  feet  head,  on  the  said  lands  retained  by 
Bigelow,  and  not  embraced  in  the  mortgage,  situated  on  sections 
24  and  13.  This  mortgage  was  afterwards  foreclosed,  and  the  title 
to  the  lands,  and  the  right  of  flowage,  therein  described,  were 
acquired  by  said  Shankwiler  and  Garling,  under  whom  defendants 
claim  the  ice.    Bigelow  also,  before  the  commencement  of  this  suit, 


112  Cases  on  Personal  Property 

conveyed  to  his  wife,  the  plaintiff,  subject  to  the  aforesaid  right  of 
flowage,  a  certain  portion  of  the  N.  "W.  |  of  the  N.  W.  I  of  section 
24,  and  the  same  premises  upon  which  the  ice  was  cut  by  defend- 
ants. The  plaintiff,  therefore,  at  the  time_of  t^he_cutting  of  the  ice, 
owned  the  laud  under  said  ice,  aiid  the  def end.antjs  lessors  owned 
the  right  to  flow  water  up on^  said  land.     *     *     * 

We  think  the  circuit  judge  was  right  in  his  conclusion  of  law 
that  the  ice  belonged  to  the  plaintiff.  Shankwiler  and  Garling,  in 
acquiring  title  under  the  mortgage  to  the  Albion  College  Endow- 
ment Fund  Company,  did  not  obtain  any  title  in  the  land  flowed, 
or  in  the  water  itself,  but  a  mere  right  to  raise  the,  water  to  a 
certain  head  at  the  flume,  and  thereby  overflow  tjie  land.  While 
the  proprietor  of  the  soil  thus  overflowed  could  not  draw  this 
water  off  by  drains  or  canals,  so  as  to  injure  the  use  of  the  same 
by  the  mill-owners,  he  would  have  beyond  question  the  right  to  use 
it  for  watering  his  cattle,  or  irrigating  his  lands  for  domestic  pur- 
poses, and  for  any  reasonable  profit  or  advantage  which  did  not, 
in  a  perceptible  and  substantial  degree,  impair  the  operation  of 
the  flouring-mill.  And  the  almost  aniform  authority  is  that  he 
may  take  and  carry  away  the  water,  when  formed  into  ice,  provided 
he  does  not  thereby  appreciably  diminish  the  head  of  water  at  the 
dam  of  the  mill-owner.     *     *     * 

The  owner  of  the  soil  under  the  water  is  ordinarily  the  sole,  and 
exclusive  owner  of  the  ice  forming  upon  such  water.  And  this  is 
not  confined  to  ponds,  forming  or  being  entirely  upon  a  person's 
premises,  but  his  riparian  ownership  of  the  bed  of  the  stream  will 
carry  with  it  the  right  to  the  ice  forming  upon  the  surface  of  such 
stream,  as  far  as  his  riparian  right  to  the  soil  extends.  Lorman  v. 
Benson,  8  Mich.  18;  People's  Ice  Co.  v.  The  Excelsior,  44  Mich. 
229,  6  N.  W.  Rep.  636 ;  Washington  Ice  Co.  v.  Shortall,  101  111.  46 ; 
Village  of  Brooklyn  v.  Smith,  104  111.  429.     *     *     * 

It  is  contended  by  the  counsel  for  the  defendant  that  this  court 
held  in  Higgins  v.  Kusterer,  41  Mich.  318,  2  N.  W.  Rep.  13,  that 
ice  was  personal  property,  and  belonged  to  the  possessor  of  the  water, 
and  that  in  the  case  before  us  the  possession  of  the  water  where 
this  ice  was  cut  was  in  Shankwiler  and  Garling;  that  they  could 
control  this  overflow  at  will,  and  without  such  overflow  no  ice 
could  be  produced.  *  *  *  "^e  do  not  consider  that  the  case  of 
Higgins  V.  Kusterer  is  at  all  opposed  to  the  authorities  heretofore 
cited.  It  was  simply  decided  in  that  ease  that,  where  the  owner 
of  the  freehold  upon  which  the  ice  had  gathered  chose  to  sell  the 
ice  by  itself,  it  ought,  for  good  reasons,  some  of  which  are  stated 


Chattels  Real  113 

in  the  opinion,  to  be  classed  as  personalty  instead  of  realty.  The 
ownership  of  the  ice  in  that  case  was  held  to  be  in  the  person 
possessing  the  water,  but  his  possession  of  the  water  was  derived 
solely  from  his  ownership  of  the  soil  under  the  pond  which  con- 
tained such  water.  The  term  "possessor  of  this  water,"  as  used  in 
the  opinion,  means  the  owner  of  the  water.  In  the  case  at  bar  no 
one  had  the  exclusive  possession  or  ownership  of  the  water  as  before 
shown.  It  was  in  a  stream  in  which  others  had  rights  as  well  as 
the  plaintiff  and  the  mill-owners.  The  use  and  possession  of  the 
waters  of  Ryan  creek  by  either  must  be  subject  at  all  times  to  the 
rights  of  other  proprietors  of  its  banks  and  bed,  both  above  and 
below  them,  from  its  source  to  its  end.  Shankwiler  and  Garling 
had  no  such  possession  of  the  water  as  would  give  them  any  abso- 
lute ownership  therein.  They  acquired  by  their  title_Jto  the  mill, 
under  the  mortgage  foreclosure,  only  the  right  to  use  the  water  for 
mill  purposes,  and  to  overflow  the  plaintiffjs  land  if  they  saw 
fit,    *     *  ~*   ' 

Xf^Shankwiler  and  Garling  sawfit  to  use  the  overflow,  as  they 
did,  then  plaintiff  would  have  ^  .nglit  to  the  ice  upon  the  overflow 
by  the  same  rule  and  principle  that  would  give  it  to  her  in  the 
channel  of  the  creek.  The  ice  forming  upon  the  w^aters  of  the 
stream  where  it  ran  through  the  plaintiff's  premises  without  any 
overflow  by  the  dam,  would  belong  to  her  by  reason_  of  he^  pi'o-_ 
prietorship  of  the  soil,  although  the  waters  of  such  creek  could 
not  be  diverted  by  her  to  the  injury  of  the  owners  of  the  stream 
below  her.  U£on^  the  same  principle  the  ownership  of  the  soij^ 
beneath  the  overflow  would  endow  her^  with_  the  exclusive  propertjv 
In  the  ice"  upon  such  overflow.     *     *     * 

The~judgment  of  the  court  below  is  affirmed,  with  costs. 

(The  other  justices  concurred. )2» 


Manure.  \j 

Landlord  and  Tenant. 

Usual  Course  of  Husbandry. 

LEWIS  V.  JONES. 

17  Pa.  St.  262,  55  Am.  Dec.  550.     1851. 

[This  was  an  action  to  recover  damages  for  carrying  away  thirty 
loads  of  manure.    Jones  owned  twenty  acres  of  land  which  he  leased 
2»See  ChiMg'  Personal  Property,  8.10. 
C.  P.  P.— 8 


114  Cases  on  Personal  Property 

to  Lewis.  Lewis  kept  cows  and  pastured  them  on  the  place.  He 
also  kept  eight  or  nine  horses.  Evidence  was  introduced  to  show 
that  Lewi^  had  bought  "some"  hay  and  "some"  grain  which  he 
fed  to  his  stock,  but  how  much  was  not  determined.  Lewis  left  the 
farm  in  April,  and  just  previous  to  his  leaving,  removed  the  manure 
in  question,  which  was  piled  in  heaps  in  the  barnyard.  Judgment 
for  plaintiff  and  defendant  appealed.] 

Lewis,  J. —  *  *  *  j^;  appears  by  the  record,  that  two  ques- 
tions of  importance  to  the  agricultural  interest  of  the  country  have 
been  decided  by  the  court  of  common  pleas ;  and  we  therefore  pro- 
ceed to  inquire  whether  any  error  has  been  committed  in  their 
solution. 

The  court  instructed  the  jury  that  if  they  believed  "that  the 
defendant  was  the  tenant  of  the  plaintiff,  and  rented  the  land  of 
him  for  farming  piirposes,  and  the  manure  was  made  upon  the 
land  in  the  ordinary  course  of  farming,  and  was  heaped  up  in  the 
yard,  and  the  defendant,  about  the  time  his  lease  was  to  expire, 
took  the  manure  (now  the  subject  of  controversy)  and  hauled  it 
away  without  the  consent  of  the  plaintiff,  when  there  was  no 
authority  given  by  the  lease  for  him  to  do  so,  this  action  can  be 
sustained,  and  the  plaintiff  will  be  entitled  to  recover  the  value 
of  the  manure  that  was  in  this  manner  taken  and  carried  away. ' ' 

It  is  implied  from  the  letting  of  a  farm  for  agricultural  pur- 
poses that  the  tenant  will  cultivate  the  land  according  to  the  rules 
of  good  husbandry.  This  is  as  much  a  part  of  the  contract  as  that 
he  shall  deliver  up  possession  at  the  end  of  the  term,  or  that  he 
shall  do  no  waste.  If  the  manure  which  is  made  by  the  feeding 
and  bedding  of  his  stock  on  the  premises,  according  to  the  usual 
course  of  husbandry,  is  to  be  disposed  of  and  carried  to  another 
farm,  it  only  creates  a  necessity  for  the  purchase  of  other  fertiliz- 
ing materials,  to  keep  the  land  in  good  order  for  the  production  of 
crops.  This  must  be  done  at  expense  of  money  in  the  purchase, 
and  time  and  labor  in  hauling  it  from  a  distance.  If  every  tenant 
were  to  adopt  the  practice  of  selling  old  manure,  much  time  and 
labor  would  be  unnecessarily  expended  in  transporting  it  from 
place  to  place,  when,  for  all  general  purposes,  the  interests  of  land- 
lord and  tenant  would  be  much  better  promoted  by  the  applica- 
tion of  the  manure  to  the  farm  on  which  it  was  made.  But  a  large 
proportion  of  farms  are  owned  by  widows  and  orphan  children, 
and  are  necessarily  in  the  occupancy  of  tenants  from  year  to  year. 
These,  which  should  be  under  the  peculiar  protection  of  the  law, 
would  be  most  exposed  to  impoverishment. 


Chattels  Re.vl  115 

Tenants  for  short  or  uncertain  periods,  under  tlie  temptation 
of  a  rule  of  law  which  encourages  bad  husbandry,  would  be  led 
into  practices  (each  in  self-protection),  which  no  one  would  adopt 
with  regard  to  his  ov/n  land.  Such  a  tenant  would  feel  no  interest 
whatever  in  preserving  the  fertility  of  the  soil  for  the  benefit  of 
those  who  might  succeed  him.  *  *  *  It  is  manifest  that  such 
a  course  of  husbandry  would  be  injurious  to  the  public  interests, 
and  ruinous  alike  to  landlords  and  tenants. 

The  justice  of  this  view  of  the  question  has  been  recognized  by 
enlightened  jurists  in  England  and  in  other  states  of  this  Union. 
Mr.  Justice  Buller  laid  down  the  doctrine  that  "every  tenant 
(where  no  particular  agreement  existed  dispensing  with  these 
engagements)  is  bound  to  cultivate  his  farm  in  a  husband-like 
manner,  and  to  consume  the  produce  on  it.  This  is  one  engage- 
ment that  arises  out  of  the  letting,  and  which  the  tenant  cannot 
dispense  with,  unless  by  special  agreement."  This  language  of 
Mr.  Justice  Buller  was  cited  by  Chief  Justice  Gibbs,  in  the  case 
of  Brown  v.  Crump,  determined  in  1815.     1  IMarsh.  567. 

In  Connecticut,  it  has  been  held  that  manure  spread  upon  the 
land,  or  scattered  about  a  barn-yard,  cannot  be  taken  away  by  the 
vendor.    Parsons  v.  Camp,  11  Conn.  530. 

In  Massachusetts,  Chief  Justice  Shaw,  in  delivering  the  opinion 
of  the  court,  declared  that  "manure  made  on  a  farm,  occupied  by 
a  tenant  at  will  or  for  years  in  the  ordinary  course  of  husbandry, 
consisting  of  the  collections  from  the  stable  and  barn-yard,  or  of 
compo.sts  formed  by  an  admixture  of  these  with  the  soil,  or  other 
substances,  is,  by  usage,  practice,  and  the  general  understanding, 
so  attached  to  and  connected  with  the  realty,  that  in  the  absence 
of  any  express  stipulation  on  the  subject,  an  outgoing  tenant  has 
no  right  to  remove  the  manure  thus  collected,  or  to  sell  it  to  be 
removed;  and  that  such  removal  is  a  tort  for  which  the  landlord 
may  have  redress."  The  tenant  has  a  qualified  possession  of  such 
manure  for  a  special  purpose  only;  that  is,  to  be  used  upon  the 
farm.  The  moment  he  sold  it,  the  act  was  an  abandonment  of  the 
special  purpose,  and  it  vested  in  the  landlord  as  owner  of  the 
freehold,  and  the  action  of  trespass  lies  for  removing  it.  Daniels 
v.  Pond,  21  Pick.  371. 

In  the  State  of  Maine,  Chief  Justice  Mellon  declared  that  tke 
claim  of  the  tenant  to  remove  the  manure  made  upon  the  premises, 
*'even  if  made  hy  livi  aum  cattle  and  with  his  own  fodder,  hod  no 
foundation  in  justice  or  reason,  and  such  a  claim  the  hiws  of  the 
land  cannot  sanction."    Lassell  v.  Reed,  G  Greeiileaf  222. 


116  Cases  on  Personal.  Property 

In  the  State  of  New  York,  Chancellor  Kent  states  that  "the 
policy  of  encouraging  and  protecting  agricultural  improvements, 
will  not  permit  the  outgoing  tenant  to  remove  the  manure  which  has 
accumulated  upon  a  farm  during  the  course  of  his  term. ' '  2  Kent 's 
Com.  347.  And  Chief  Justice  Nelson,  of  the  same  state  (now  on 
the  bench  of  the  Supreme  Court  of  the  United  States),  after  review- 
ing the  authorities  and  examining  the  question  upon  principle, 
declares  that  where  a  farm  is  let  for  agricultural  purposes  (no 
custom  or  stipulation  in  the  case),  the  manure  does  not  belong  to 
the  tenant,  but  to  the  farm ;  and  the  tenant  has  no  more  right  to 
dispose  of  it  to  others,  or  remove  it  himself  from  the  premises,  than 
he  has  to  dispose  of  or  remove  a  fixture."  "If  a  farm  be  leased 
for  agricultural  purposes,  good  husbandry  (which  without  any 
stipulation  is  implied  by  law),  would  undoubtedly  require  it  to 
be  left  on  the  premises."    Middlebrook  v.  Corwin,  15  "Wend.  171. 

There  are  other  authorities  upon  this  question;  but  enough  has 
been  said  to  show  that  the  charge  of  the  court  below  was  correct, 
so  far  as  it  relates  to  the  manure  made  from  the  produce  of  the 
farm. 

The  doctrine  that  the  manure  goes  with  the  land,  is  of  course 
confined  to  farms  which  are  let  for  agricultural  purposes;  and 
the  case  before  us  is  one  of  that  character,  in  which  the  manure 
was  made  from  the  produce  of  the  farm. 

One  of  the  witnesses,  however,  testified  that  the  tenant  "bought 
some  Jiay'^ — the  witness  did  not  know  how  much — "and  some 
grain  to  feed  his  horses  and  cows.  He  fed  the  horses  on  the  grain 
that  was  bought."  #  *  *  ^'Sonie"  is  a  term  too  uncertain  in 
its  signification  to  sustain  a  verdict  for  any  definite  amount.  It 
may  mean  a  single  ounce,  or  ten  thousand  tons — a  single  quart, 
or  twenty  thousand  bushels. 

But  where  a  farm  is  let  for  agricultural  purposes,  the  tenant 
cannot  justify  the  removal  of  any  portion  of  the  manure  made  on 
the  premises,  by  occasionally  employing  his  teams  in  business 
not  connected  with  the  cultivation  of  the  soil,  and  supplying  them 
in  part  w^ith  hay  and  grain  purchased  from  others,  so  long  as 
the  manure  thus  made  is  commingled  with  that  made  from  the 
produce  of  the  farm.  It  is  probable  that  in  such  a  case,  the  land 
would  lose  as  much  during  the  absence  of  the  teams  on  the  road, 
as  it  would  gain  by  the  foreign  admixture.     *     *     * 

It  is  ordered  that  the  judgment  of-  the  court  below  be  affirmed. 

Judgment  affirmed?^ 

80  See  Childs'  Personal  Property,  §31. 


Chattels  Real  117 

Not  in  Usual  Course  of  HusBA2rt>RY. 

COLLIER  V.  JENKS.  * 

19  E.  I.  137,  32  Atl.  208.     1895. 
The  facts  are  stated  in  the  opinion. 

Matteson,  C.  J. — This  is  an  exception  to  the  decision  of  the 
District  Court  of  the  Sixth  Judicial  District  in  an  action  of  tres- 
pass de  bonis  asportaiis  for  breaking  and  entering  the  plaintiff's 
close  and  taking  and  carrying  away  and  converting  to  the  defend- 
ant's  use  a  quantity  of  manure.  It  was  admitted  at  the  trial  that 
the  manure,  amounting  to  about  nine  cords,  was  made  on  the  farm 
of  the  defendant's  wife;  that  it  had  been  hauled  out  of  the  barn 
yard  and  piled  on  a  lot  containing  about  seven-eighths  of  an  acre, 
which,  subsequently,  on  December  23,  1893,  was  conveyed  by  the 
defendant  and  his  wife  to  the  plaintiff.  The  defendant  offered 
evidence  tending  to  prove  an  oral  reservation  of  the  manure  in 
the  following  spring.  The  court  excluded  the  evidence  on  the 
ground  that  the  manure  was  appurtenant  to  the  land  on  which 
it  was  piled  and  passed  under  the  deed  of  it  to  the  plaintiff;  and 
that  no  oral  reservation  was  effectual  to  retain  title  to  the 
manure.     *     *     * 

^lanure  made  on  the  farm  in  the  usual  course  of  husbandry 
is  so  far  regarded  as  an  incident  of  the  realty  or  appurtenant  to 
it  that,  in  the  absence  of  any  agreement  concerning  it,  it  will  pass 
under  a  deed  of  the  farm.  The  rule  is  one  of  policy,  designed  to 
promote  the  interests  of  agriculture.  We  see  no  reason  for  its 
application  when  the  sale  is,  not  of  the  farm,  but  only  of  a  small 
parcel  of  land  off  the  farm  on  which  the  manure  happens  to  be 
piled.  Cessante  ratiane,  lex  ipsa  cessat.  There  is  nothing  in  the 
nature  of  manure  prior  to  its  actual  incorporation  with  the  soil 
which  makes  it  neces.sary  to  regard  it  as  a  part  of  the  realty.  It 
may  be  sold  by  tbe  owner  of  a  farm  separately  from  tbe  land. 
Such  a  sale  amounts  to  a  severance  of  it  from  the  land  and  con- 
stitutes it  personal  estate ;  French  v.  Freeman,  43  Yt.  94 ;  or  it 
may  be  the  subject  of  an  oral  reservation  prior  to  or  contempo- 
raneous with  a  conveyance  of  the  land  and  thereby  become  per- 
sonal estate;  Strong  v.  Doyle,  110  Mass.  92.  Manure  made  in 
livery  stables,  or  in  bams  not  connected  with  farms,  or  otherwise 
than  in  the  usual  course  of  husbandry,  forms  no  part  of  the  realty 


118  Cases  on  Personal  Property 

on  which  it  may  be  piled,  but  is  regarded  as  personal  estate.  Need- 
ham  V.  Allison,  4  Foster  355 ;  Daniels  v.  Pond,  21  Pick.  367 ;  Lassell 
V.  Reed,  6  Greenl.  222 ;  Parsons  v.  Camp,  11  Conn.  525. 

The  conveyance  to  the  plaintiff  having  been,  not  of  the  farm, 
but  only  of  a  lot  of  seven-eighths  of  an  acre,  we  are  of  the  opinion 
that  the  manure  did  not  form  a  part  of  the  land  conveyed  because 
it  happened  to  be  piled  on  it  at  the  time  of  the  conveyance ;  and, 
hence,  that  the  court  below  erred  in  awarding  the  value  of  the 
manure  to  the  plaintiff. 

Exception  sustained  and  case  remitted  to  the  District  Court  of 
the  Sixth  Judicial  District  for  a  new  trial. ^^ 


^ 


Vendor  and  Vendee. 
ELTING  V.  PALEN. 
60  Hun.  (N.  Y.)  306,  14  N.  Y.  Snpp.  607.     1891. 
The  facts  are  stated  in  the  opinion. 

LKt^rned,  p.  J. — The  defendant  occupied  as  tenant  a  farm  of 
some  300  acres,  and  his  lease  expired  April  1,  1887.  A  partition 
sale  of  the  premises  was  had  October  14,  1886,  at  which  the  plain- 
tiff bought  45  acres,  which  contained  the  barn  and  dwelling-house. 
Other  persons  bought  other  parcels;  among  them  Mrs.  Varick 
bought  about  47  acres.  The  terms  of  sale  as  to  all  the  land  stated 
that  it  was  sold  ''subject  to  the  rights  of  Calvin  Palen  as  tenant, 
and  the  possession  of  said  premises  will  be  reserved  until  April  1, 
1887,  and  also  the  winter  grain  sown  thereon  will  be  reserved,  and 
the  right  of  the  tenant  of  coming  upon  said  premises  after  April 
1,  1887,  and  gathering  the  same."  On  the  farm — not  on  the  part 
bought  by  the  plaintiff — ^was  also  another  barn,  used  for  storing 
hay.  At  the  time  of  the  purchase  by  plaintiff  there  were  two  or 
three  loads  of  manure  in  the  yard  of  the  barn,  bought  by  him.  On 
the  17th  of  February  following  the  time  of  the  commencement 
of  this  action  there  were  130.  Just  prior  to  the  commencement 
of  this  action  the  defendant  began  carting  away  his  manure  from 
the  plaintiff' 's  barn-yard,  and  depositing  it  on  that  part  of  the 
farm  purchased  by  Mrs.  Varick.  This  he  did  at  her  request. 
He  had   carted   away  about   13   loads.     Thereupon   the   plaintiff 

31  See  Childs'  Personal  Property,  §31. 


Chattels  Real  119 

commenced  this  action,  and  obtained  an  injunction  pendente  lite, 
forbidding  the  defendant  from  carting  away  any  more  manure. 
On  the  trial  this  injunction  was  made  final,  and  from  the  judg- 
ment the  defendant  appeals. 

It  does  not  distinctly  appear  whose  tenant  the  defendant  had 
been, — probably  the  tenant  of  the  deceased  owner.  *  *  *  The 
terms  of  sale  reserve  only  the  possession.  It  would  seem,  then, 
that  the  title  passed  to  the  several  purchasers  at  the  time  they 
received  their  deeds;  but  that,  owing  to  the  defendant's  existing 
lease,  they  could  not  take  actual  possession.  The  terms  of  the 
sale  seem  to  have  been  intended  simply  to  protect  the  rights  of 
defendant  as  tenant,  and  to  prevent  any  claim  by  the  several  pur- 
chasers that  the  contract  of  sale  was  broken  by  their  inability  to 
turn  the  defendant  out  of  possession.  The  several  purchasers, 
therefore,  becoming  owners  of  their  several  parcels,  must  have 
acquired  severally  the  Tighta  towards  the  defendant  which  a 
land-owner  would  have  in  respect  to  a  tenant  under  such  circum- 
stances, and  these  several  purchasers  were  not  co-tenants  or  joint 
tenants.  They  held  their  respective  purchases  in  severalty.  If 
the  defendant's  lease  had  continued  for  another  year,  then  it  is 
very  probable  that  in  the  ordinary  course  of  good  husbandry  he 
could  have  spread  this  manure  upon  any  proper  part  of  the  farm, 
because  the  annual  spreading  of  the  manure  is  the  ordinary  mode. 
Pie  would  have  been  entitled  to  have,  by  this  mode  of  use,  the 
benefit  of  the  accumulated  manure.  But  his  lease  was  to  expire 
April  1st.  His  carting  this  manure  to  a  part  of  the  farm  bought, 
not  by  the  plaintiff,  but  by  some  other  person,  was  the  same  as  if 
he  had  carted  it  to  some  land  which  had  never  been  part  of  the 
farm.  The  previous  owners  of  the  farm  had  by  the  partition  sale 
divided  it,  and  each  purchaser  held  his  purchase  separately.  In 
]\Iiddlebrook  v.  Corwin,  15  Wend.  169,  the  landlord  sued  the  tenant 
for  manure  taken  away  from  the  farm  shortly  before  the  expira- 
tion of  the  term,  and  it  was  held  that  he  could  recover.  The  court 
said  the  manure  belonged  to  the  farm,  and  the  tenant  had  no 
more  right  to  remove  it  than  he  had  to  remove  a  fixture.  Sucli  is 
the  rule  in  2  Kent,  Comm.  347.  In  GoodricL  v.  Jones,  2  Hill  142, 
the  court  held  that  manure  made  a  part  of  the  freehold,  though 
laid  up  in  heaps  in  the  barn-yard.  This  was  said  to  be  the  doctrine 
between  landlord  and  tenant,  and  to  be  stronger  as  between  vendor 
and  vendee.  The  same  is  held  in  Daniels  v.  Pond,  21  Pick.  367; 
and  Kittredge  v.  Woods,  3  N.  II.  503,  which  last  case  is  approved 
in  Goodrich  v.  Jones,  svpra.     See,  also,  Lassell  v.  Reed,  6  Greenl. 


120  Cases  on  Personal  Property 

222.  It  is  worth  noting,  also,  that  this  is  a  rule  not  of  law  only. 
By  the  Roman  law,  manure  went  to  the  purchaser  of  the  farm, 
whether  the  manure  was  in  a  heap  or  in  a  stable.  Fundo  vendito 
vel  legato  sterciilinum  et  stramenta  emtoris  et  legatoris  sunt  et  ne 
interest  in  stabulo  jaceat  an  acervus  sit.  Dig.  XIX,  117,  2. 
See,  also.  Dig.  XLIII,  24,  7,  6.  It  is  urged  by  the  defendant  that 
this  manure  w^as  not  in  existence  when  the  plaintiff  purchased, 
but  was  made  subsequently.  Then,  as  we  have  above  seen,  the 
defendant  was  after  the  purchase  in  the  position  of  tenant  to  the 
plaintiff;  and  the  rule  is  equally  applicable  in  that  relation.  In 
regard  to  the  case  cited  by  defendant  of  Ruckman  v.  Outwater, 
28  N.  J.  Law  581,  holding  the  manure  in  a  barn-yard  does  not 
pass  to  the  grantee,  we  can  only  say  that  it  is  contrary  to  the 
decisions  of  our  state  above  cited,  and,  however  well  considered, 
we  cannot  follow  it.  The  defendant  urges  the  rights  of  co-tenants 
or  joint  tenants  as  to  personal  property;  but  w^e  think  that  those 
rights  are  not  here  involved.  Of  course  there  is  a  certain  difficulty 
in  treating  such  an  article  as  manure  in  a  farm  barn-yard  as  real 
estate;  but  the  difficulty  is  no  greater  than  in  the  case  of  hop- 
poles  (Bishop  V.  Bishop,  11  N.  Y.  123)  ;  and  the  rights  of  all 
parties  seem  to  be  best  settled  when  the  manure  is  said  to  belong 
to  the  farm,  and  not  to  the  tenant.  Nor  do  we  think  that  any 
difficulty  arises  from  the  fact  that  the  tenant's  lease  extended 
over  the  whole  300  acres.  He  had  no  right  to  the  manure  as 
owner,  though  he  might,  as  above  stated,  have  restored  it  to  the 
land;  and  when  the  owners  of  the  land  divided  it  by  their  sale, 
we  see  no  injustice  in  saying  that  the  manure  belonged  to  that 
separate  portion  of  the  farm  on  which  it  was  accumulated;  for, 
as  above  pointed  out,  it  could  not,  in  good  husbandry,  during 
what  remained  of  the  defendant's  term,  have  been  applied  for  his 
benefit  over  the  farm  generally. 

Judgment  affirmed,  with  costs.^^ 


RUCKMAN  V.  OUTWATER. 

28  (4  DutcJier)  N.  Jer.  Law  581.    1860. 

The  facts  are  stated  in  the  opinion. 

Haines,  J. — To  an  action  of  assumpsit,  the  plaintiff  in  error, 
who  was  the  defendant  below,  pleaded  payment  with  a  notice  of 
32  See  Childs '  Personal  Property,  §  31. 


Chattels  Real  121 

set-off,  in  which  he  charged  the  plaintiff  below  with  a  quantity 
of  manure  sold  and  delivered.  To  sustain  this  charge,  he  gave 
in  evidence  a  deed  of  conveyance,  from  the  plaintiff  to  him,  of  a 
farm,  in  the  county  of  Bergen,  containing  no  exception  or  reserva- 
tion of  manure  or  of  fixtures.  And  he  further  proved  that  the 
plaintiff,  by  his  consent,  remained  in  the  possession  of  the  premises 
after  the  execution  of  the  deed,  and  that,  while  he  continued  in 
such  possession,  the  plaintiff  took  and  carted  away  the  manure, 
which  was  lying  in  and  spread  over  the  barn-yard,  and  not  in 
heaps,  at  the  time  of  the  sale  and  conveyance  of  the  farm. 

The  court  was  requested  to  charge  the  jury  that  the  manure  so 
lying  in  the  barn-yard,  and  not  in  heaps  at  the  time  of  the  sale 
and  conveyance  of  the  farm,  if  not  reserved  by  the  vendor,  passed 
by  the  deed  with  and  as  a  part  of  the  farm.  The  court  refused 
so  to  charge,  but  instructed  the  jury,  in  effect,  that  the  title  to 
the  manure  did  not  pass  by  the  deed,  and  that  the  defendant,  as 
purchaser  of  the  farm,  could  not  claim  as  of  right  the  manure 
that  had  accumulated  in  the  barn-yard.  On  this  the  error  is 
assigned,  and  the  judgment  sought  to  be  reversed. 

The  question  thus  presented  is,  whether,  by  the  deed  of  convey- 
ance of  a  tract  of  land  without  any  clause  of  reservation,  the  title 
to  the  manure  lying  in  and  around  the  barn-yard,  where  it  had 
accumulated,  passed  to  the  grantee. 

By  an  ordinary  deed  of  conveyance  of  land  nothing  passes  to 
the  grantee  but  the  real  estate  and  its  appurtenances,  and  whatso- 
ever is  so  attached  or  affixed  to  it,  that  it  cannot  be  removed  with- 
out injury  to  the  freehold.  Hence  the  question  arises,  whether 
manure  so  lying  in  a  barn-yard  is  a  part  of  the  real  estate,  or  an 
appurtenant  to  it,  or  so  attached  to  the  freehold  that  it  passes 
with  it  by  virtue  of  the  deed  of  conveyance. 

The  question  is  not  to  be  determined  by  the  rules  of  law  regu- 
lating fixtures,  for  the  property  in  question  is  in  no  respect  a 
fixture,  an  article  of  a  personal  nature  affixed  to  the  freehold, 
and  which  cannot  be  removed  without  injury  to  it,  nor  is  it  claimed 
as  such.  It  is  claimed  as  a  part  of  the  freehold  itself,  an  appur- 
tenant to  it,  and  which,  for  the  sake  of  agriculture  and  good 
husbandry,  should  not  be  removed. 

But,  as  between  the  grantor  and  grantee,  I  can  discover  no  reason, 
nor  can  I  find  any  sati.sfactory  authority  for  such  claim.  Manure 
in  the  j'ard  is  as  much  personal  property  as  the  animals  and  the 
litter  from  which  it  is  produced ;  as  much  so  as  the  grain  in  the 
barn  or  the  stacks  of  hay  in  the  meadow.    And  it  is  not  material 


122  Cases  on  Personal  Property 

whether  it  lies  up  in  heaps  or  scattered  around  the  yard ;  whether 
as  thrown  from  the  doors  or  windows  of  the  stable,  or  where  it 
accumulated  from  the  droppings  of  the  cattle.  But  when  it  is 
spread  upon  the  land,  and  appropriated  to  it  for  fertilizing  pur- 
poses, then,  and  not  until  then,  does  it  become  a  part  of  the  free- 
hold. Posts  and  rails,  designed  for  the  farm,  are  personal  prop- 
erty so  long  as  they  remain  in  piles  or  otherwise  unappropri- 
ated; but  as  soon  as  they  are  converted  into  fence  they  become  a 
part  of  the  freehold  affixed  to  it,  so  as  to  lose  the  character  of 
personalty. 

As  well  may  the  timber,  stones,  and  other  materials  brought 
together  for  the  construction  of  a  building  be  regarded  as  a  part 
of  the  farm  before  the  building  is  erected,  as  the  manure  before 
it  is  applied. 

Between  the  vendor  and  the  vendee  the  rule,  as  to  what  is  per- 
sonal and  what  real  estate,  is  the  same  as  between  the  heir  at  law 
and  the  executor.  As  between  the  latter,  it  obtains  with  the  most 
rigor  in  favor  of  the  inheritance  and  against  the  right  to  consider 
as  personal  property  anything  which  has  been  affixed  or  is  appur- 
tenant to  the  freehold.  Yet,  as  between  them,  manure  has  ever 
been  regarded  as  personal  property,  and  sold  by  the  executor  with- 
out a  question  of  the  right  to  do  so.     *     *     * 

Toller,  in  his  law  of  executors,  page  150,  says:  ''Manure  in 
a  heap,  before  it  is  spread  on  the  land,  is  a  personal  chattel." 

In  Carver  v.  Pierce,  Styles  66,  cited  in  11  Vin.  Ab.  175,  Execu- 
tor 2,  Roll,  J.,  as  early  as  Mich,  term  of  23  Charles,  held  that 
dung  in  a  heap  is  a  chattel,  but  if  spread  upon  the  land  it  is  not. 

Such  is  the  rule  of  the  common  law,  and  also  of  the  ecclesiastical 
law,  and  as  we  have  no  statute  on  the  subject,  it  is  also  the  law  of 
New  Jersey,  and  I  can  find  no  satisfactory  reason  in  any  commen- 
tary or  in  the  adjudication  of  other  states  for  changing  the  rule. 

In  2  Kent's  Com.  346,  it  is  laid  down  that  manure  lying  upon 
the  land,  and  fixtures  erected  by  the  vendor  for  the  purpose  of 
trade  and  manufactures,  such  as  potash  kettles,  pass  to  the  vendee 
of  the  land.  But  the  author  is  there  treating  of  fixtures,  and 
refers  for  authority  to  cases  which,  so  far  as  they  relate  to  manure, 
cannot  be  sustained  on  the  principles  of  the  common  law,  as  between 
vendor  and  vendee,  or  landlord  and  tenant,  in  the  absence  of  some 
covenant  or  local  custom  to  control  them.  Miller  v.  Plumb,  6 
Cowen  665,  relates  strictly  to  the  question  of  fixtures,  the  right  to 
potash  kettles,  troughs,  and  leaches.    In  Kirwan  v.  Latour,  1  Har. 


Chattels  Real  123 

&  Johns.  289,  the  right  to  a  still-house  apparatus  and  utensils  for 
carrying  on  a  distillery  was  a  question. 

Powell  V.  Monson,  3  Mason  459,  relates  to  the  millwheel  and 
gearing  of  a  factory,  and  Farrer  v.  Stackpole,  6  Greenl.,  p.  154, 
to  the  fixtures  of  a  .sawmill.  Unless  the  discriminating  commen- 
tator can  be  supposed  to  have  adopted  the  fallacy  of  the  reasoning 
in  Kittredge  v.  Woods,  3  New  Hamp.  R.  503,  it  is  fair  to  presume 
that,  in  speaking  of  manure  lying  upon  the  ground,  he  had  refer- 
ence to  such  as  had  been  spread  upon  the  land,  and  appropriated 
to  it. 

In  Kittredge  v.  Woods,  3  New  Hamp.  R.  503,  decided  in  1829, 
Ch.  Just.  Richardson,  in  a  very  elaborate  opinion,  held  that  all 
manure,  whether  it  be  in  heaps  about  barns  or  made  in  other  places 
on  the  land,  goes  with  the  land  to  the  vendee.  As  this  is  a  leading 
case,  which  has  been  followed  and  relied  upon  by  the  courts  in 
nearly  all  the  eases  in  New  England  and  New  York,  it  may  be  proper 
to  examine  the  principles  on  which  it  is  based. 

After  discussing  the  law  of  fixtures  between  parties  in  their 
various  relations,  the  Chief  Justice  refers  to  authorities  to  show 
that  things  which,  although  not  affixed  to  the  freehold,  go  to  the 
heir  as  appurtenances  to  the  inheritance,  namely  to  doves  able  to 
fly,  which  with  the  dovecot  go  to  the  heir,  while  young  doves  in 
the  dove-house  not  able  to  fly  belong  to  the  executor.  He  refers, 
also,  to  the  keys  of  the  doors  and  to  chests  containing  the  title 
deeds,  which  go  to  the  heir,  and  then  adds — "We  are  inclined  to 
think  that  the  principle  of  these  decisions  will  give  to  the  heir 
the  manure  which  may  be  carried  out  and  left  upon  the  field  in 
heaps  for  dressing,  or  which  may  be  left  lying  in  heaps  about  the 
barns  upon  the  land." 

But  I  am  at  a  loss  to  perceive  how  the  rules  for  the  disposition 
of  such  articles  can  change  or  modify  the  equally  well  settled  rules 
as  to  manure. 

*  *  *  These  articles  are  all  regarded  as  belonging  to  the  free- 
hold, although  in  fact  severed  from  it.  Having  been  appropriated 
to  the  land,  like  boards  which  have  fallen  from  the  fence  or  build- 
ing, or  like  a  mill-stone  which  has  been  lifted  from  its  bed  for 
the  purpose  of  being  picked,  they  continue  to  be  a  part  of  it. 
Hence  I  have  ventured  to  characterize  the  reasoning  and  deduc- 
tions of  the  ease  as  fallacious. 

Daniels  v.  Pond,  21  Pick.  367,  decided  in  1838,  has  also  boon 
consiflpred  as  a  leading  ca.se  in  relation  to  manure. 

In  the  opinion  of  the  court,  expressed  by  Chief  Justice  Shaw, 


124  Cases  on  Personal  Property 

it  was  declared  that  manure  made  on  a  farm  occupied  by  a  tenant 
at  will  or  for  years  in  the  ordinary  course  of  husbandry,  consisting 
of  collections  from  the  stable  and  barn-yard,  or  of  compost  formed 
by  an  admixture  of  these  with  the  soil  or  other  substances,  is,  by 
usage,  practice,  and  general  understanding,  so  attached  to  and 
connected  with  the  realty  that,  in  the  absence  of  any  express  stipu- 
lation on  the  subject,  the  outgoing  tenant  has  no  right  to  remove 
it,  or  to  sell  it  to  be  removed.  This  opinion  is  expressly  based 
on  usage,  practice,  and  general  understanding,  and  is  consequently 
of  no  value  in  a  case  where  there  is  no  proof  of  any  such  usage  or 
practice. 

In  Middlebrook  v.  Corwin,  15  Wend.  R.  170,  determined  in  1836, 
Nelson,  J.,  cites  the  English  authorities  above  referred  to  as  fixing 
the  rule  on  this  subject,  and  adds,  perhaps  this  rule  is  to  be  taken 
with  some  qualifications. 

The  practice  and  usage  of  the  neighboring  country,  and  even  in 
relation  to  a  particular  farm,  should  enter  into  the  decision  of 
the  question;  because  the  parties  are  presumed  to  enter  into  the 
engagement  with  reference  to  it,  where  there  is  no  express  stipula- 
tion.   And  he  concludes  a  tenant  has  no  right  to  remove  the  manure. 

While  this  c^  recognizes  the  rule  of  the  common  law,  it  seeks 
to  modify  it  l^the  consideration  of  local  usage ;  but  it  can  have 
no  weight  against  that  rule  in  this  ease,  where  there  is  no  evidence 
of  any  such  usage. 

The  cases  thus  referred  to  and  considered  are  leading  cases, 
and  have  had  their  influence  on  those  which  followed  them,  and  it 
is  sufiicient  for  the  present  purpose  to  say,  that  although  they 
are  entitled  to  great  respect  and  to  much  weight  where  they  are 
applicable,  yet  that  the  reasoning  and  the  principle  of  none  of 
them  are  such  as  to  induce  us  to  make  innovation  upon  the  rule 
of  the  ecclesiastical  and  common  law  long  recognized  and  main- 
tained by  us. 

The  conclusion  is  that  manure  lying  in  and  around  the  yard, 
not  spread  upon  the  land,  is  personal  property,  and  does  not  by 
virtue  of  the  deed  of  conveyance  pass  with  the  freehold ;  that  there 
is  no  error  in  the  charge  of  the  court  below,  and  that  the  judgment 
must  be  affirmed  with  costs.^^ 

For  affirmance— The  Chancellor,  Judges  Haines,  V.  Reden- 
BiiRGH,  Whelpley,  Combs,  Swain,  and  Wood. 
For  reversal — Judges  Van  Dyke  and  Cornelison. 

33  See  Childs '  Personal  Property,  §  31. 


CHAPTER  nr. 

CHOSES  IN  POSSESSION. 

Animals.  t 

GRAHAM  V.  SMITH. 

100  Ga.  434,  28  8.  E.  225,  62  Am.  St.  323,  40  L.  U.  X  503.     1897. 

Trover  for  conversion  of  dog. 

The  facts  as  stated  by  the  court  are  as  follows: 

Smith  brought  bail  trover  in  a  magistrate's  court  against  Graham 
to  recover  the  possession  "of  one  terrier  slut,  nai^ied  Belle,"  de- 
scribing it,  to  which  he  claimed  title,  which  he  alleged  was  worth 
$10,  and  that  Graham  was  in  possession  of  it,  etc.  Graham  de- 
murred generally,  because  under  the  laws  of  Georgia  a  dog  is  not 
property  for  civil  purposes,  is  not  and  could  not  be  the  subject- 
matter  of  conversion,  and  could  not  be  made  the  subject-matter 
of  contract,  having  no  value  in  law,  and  because  plaintiff's  remedy, 
if  any,  is  by  possessory  warrant.  The  magistrate  overruled  the 
demurrer,  and  this  decision  was  sustained  on  certiorari. 

Little,  J. — The  official  report  states  the  facts.  It  is  somewhat 
difficult  to  determine  the  status  of  the  dog  as  property  in  this 
state.  It  is  not  difficult  to  show  that  the  owner  has  a  property  right 
in  the  animal,  but  it  is  difficult  to  define  the  nature  and  extent 
of  it.  This  right  seems  to  be  better  defined  at  common  law  than 
it  is  by  the  construction  which  this  court  has  put  upon  our  statutes. 
Our  constitution  (article  7,  §2,  par.  1)  impliedly  recognizes  dogs 
as  property.  It  provides  that  the  general  assembly  may  impose 
a  tax  upon  such  domestic  animals  as,  from  their  nature  and  haliits, 
are  destructive  of  other  property.  It  is  true  that  this  power  to  tax 
partakes  of  the  nature  of  a  police  regulation,  and  is  made  the 
exception  to  our  uniform  and  ad  valorem  system  of  taxation ;  but 

125 


126  Cases  on  Personal  Property 

the  words  giving  the  power  evidently  intend  to  and  do  denote  the 
dog  as  a  domestic  animal,  and,  by  reference,  class  this  animal  with 
other  property.  Section  2965  of  the  Code  recognizes  the  owner- 
ship of  dogs,  in  that  it  makes  the  owners  liable  to  suit  for  the 
recovery  of  damages  for  injuries  inflicted  by  their  dogs  under 
certain  circumstances.  Section  4402  of  the  Code  makes  the  dog, 
eo  nomine,  a  subject  of  simple  larceny.  This  provision,  however, 
does  not  seem  to  bring  the  dog  as  property  to  any  high  degree, 
because,  in  speaking  of  all  other  domestic  animals,  it  is  provided, 
**and  also  a  dog"  may  be  the  subject  of  simple  larceny,  implying 
two  things — that  he  was  not,  therefore,  a  subject  of  simple  larceny, 
nor  was  he  a  domestic  animal.  To  one  of  us,  at  least,  a  possible 
reason  why  the  dog  may  not,  by  common  consent,  have  been  ac- 
corded a  place  among  domestic  animals  not  more  worthy  and 
even  less  valuable,  is  suggested  by  a  learned  writer  (Grotius)  when 
he  says,  "The  reason  why  some  creatures  fly  and  avoid  us  is  not 
the  want  of  gentleness  and  mildness  on  their  part,  but  on  ours." 
In  Jemison  v.  Railroad,  75  Ga.  444,  which  was  an  action  against 
a  railroad  company  for  the  negligent  and  malicious  killing  of  a 
dog  by  the  operation  of  a  train  of  cars,  it  was  held  that  a  dog  is 
property  only  in  a  qualified  sense,  and  that  such  an  action  would 
not  lie;  and  in  the  case  of  Patton  v.  State,  93  Ga.  Ill,  19  S.  E. 
734,  it  was  held  that  the  willful  and  malicious  killing  of  a  dog  was 
not  an  indictable  offense,  under  section  4627  of  our  Code.  In  the 
latter  ease,  however,  the  ruling  was  based  on  the  construction  that 
the  subjects  of  that  particular  statute  were  inanimate  property. 
In  the  case,  however,  of  Manning  v.  Mitcherson,  69  Ga.  447,  it  was 
ruled  that  the  law  of  this  state  contemplated  that,  to  have  prop- 
erty in  animals  which  are  wild  by  nature,  the  owner  must  have 
them  within  his  actual  possession,  custody,  or  control,  and  this  may 
be  done  by  taming,  domesticating,  or  confining  them ;  and  it  was 
ruled  also  in  that  case  that  a  possessory  warrant  would  lie  for  the 
recovery  of  a  bird  when  so  in  possession;  and  animals,  by  that 
decision,  come  under  the  same  class.  It  is  therefore  apparent  that 
an  owner  has  property  in  his  dog,  and  that  this  property  is  suffi- 
cient to  support  an  action  to  recover  possession  of  it  when  such 
has  been  lost. 

Dogs  have  been  held  to  be  property  by  the  courts  in  the  District 
of  Columbia,  in  Kansas,  Texas,  Connecticut,  Tennessee,  Michigan, 
Nebraska,  Utah,  and  perhaps  in  other  states.  A  contrary  ruling 
has  been  made  in  several  of  the  other  states.  His  status  seems  to 
be  more  clearly  defined  by  the  common  law.    The  compilers  of  the 


Choses  in  Possession  127 

American  &  English  Encyclopedia  of  Law  (volume  1,  p.  584) 
lay  down  the  proposition  that  "at  common  law  the  dog  is  con- 
sidered a  tame,  harmless  and  docile  animal."  If  this  be  true — and 
our  investigation  does  not  bear  it  out  to  its  full  meaning — then 
the  owner  can  have  an  absolute  property  in  such  animals,  because 
"animals  which  are  of  a  tame  and  domestic  nature  are  the  sub- 
jects of  absolute  property."  7  Am,  &  Eng.  Enc.  Law,  p.  572. 
The  latter  proposition  is  supported  by  reference  to  a  number  of 
authorities.  We,  however,  think  that  Chancellor  Kent  more  cor- 
rectly lays  down  the  common-law  rule  that  "animals  ferae  naturae, 
so  long  as  they  are  reclaimed  by  the  art  and  power  of  man,  are 
also  the  subject  of  a  qualified  property,"  and  that  "while  this 
qualified  property  continues,  it  is  as  much  under  the  protection 
of  law  as  any  other  property,  and  every  invasion  of  it  is  redressed 
in  the  same  maner. ' '  2  Kent.  Comm.  §  348.  Thus,  it  has  been  held 
that  trover  lies  for  wild  geese  which  have  been  tamed,  but  which, 
without  regaining  their  natural  liberty,  have  strayed  away. 
Amory  v.  Flyn,  10  Johns.  102,  So,  also,  for  domestic  fowls. 
Leonard  v.  Belknap,  47  Vt.  603.  Blackstone  declares  that  the 
property  in  a  dog  is  base  property,  but  that  such  property  is  suffi- 
cient to  maintain  a  civil  action  for  its  loss.  4  Bl.  Comm.  236. 
Professor  Schouler,  in  his  treatise  on  the  Law  of  Personal  Property 
(section  49),  pronounces  the  dog  to  be  a  tame  animal,  from  which 
definition  it  would  appear  that  an  o\\Tier  can  acquire  an  absolute 
property  in  the  animal ;  and  he  distinguishes  this  animal  from  such 
others  as  property  can  be  acquired  in  only  by  possession.  So.  it 
will  be  seen  that  at  the  common  law  and  under  our  statutes  the 
owner  has  property  in  his  dog,  and  not  only  so,  but  such  property 
right  is  sufficient  to  maintain  a  civil  action  to  recover  its  possession. 
In  the  case  now  imder  consideration  the  defendant  in  error 
brought  an  action  of  trover  in  a  justice's  court  to  recover  posses- 
sion of  his  dog.  A  demurrer  was  filed  to  the  proceeding  in  that 
court,  which  was  overruled  by  the  magistrate,  and  the  case  taken 
to  the  superior  court  by  writ  of  certiorari;  whereupon  the  judge 
of  the  latter  court  held  that  the  ruling  of  the  magistrate  was 
correct.  So  do  we,  on  the  authorities  before  referred  to.  The 
action  of  trover,  while  changed  witluisJn^ soma  respects,,  was  orig- 
Tnally  a  special  action  on  the  case,  in  favor  of  anyjpersQnjslio,had 
a  general  or  specTal  prop^rt^in  ^oods  against  any  person  who 
^v^ongfuTIy  vntliheld  them  from  his  possession.  The  special  or 
qualified  property  which  has  been  shown  to  exist  in  animals  of  this 
character  is  sufficient  to  support  this  action.     The  action  lies  for 


128  Cases  on  Personal  Property 

every  species  of  personal  property,  animate  or  inanimate.  6  Wait, 
Act.  &  Def.  pp.  128,  155.  The  question  was  expressly  ruled  in  the 
state  of  Massachusetts,  even  though  the  courts  of  that  state  had 
declared  that  the  property  right  in  a  dog  was  only  a  qualified  one. 
See  Cummin gs  v.  Perham,  1  Mete.  (Mass.)  555.  The  question  was 
likewise  ruled  in  Binstead  v.  Buck,  2  W.  Bl.  top  page  1117.  The 
judgment  of  the  court  below  is  affirmed.^ 


REED  V.  GOLDNECK. 
112  Mo.  App.  310,  86  S.  W.  1104.     1905. 
Action  for  damages  for  killing  dog. 

*  *  *  The  circuit  court,  upon  hearing  the  evidence,  found  the 
issues  for  the  defendant.    Plaintiff  appealed  to  this  court. 

The  evidence  tended  to  show  that  plaintiff  and  others  were  out  fox 
hunting,  started  a  fox  about  10:30  o'clock,  and  shortly  after  mid- 
night, while  the  dogs  were  trailing  on  defendant's  premises  near 
his  house  and  barn,  and  while  inside  an  inelosure  in  which  he  had 
175  or  180  goats  and  some  25  rabbits,  defendant  arose  from  his 
bed,  went  into  the  yard,  and  shot  the  dog.  Defendant's  evidence 
showed  that  a  short  time  before  that  he  had  had  15  goats  killed 
by  dogs.  Defendant's  neighbor  testified  that  he  lived  about  200 
yards  from  the  defendant;  that  he,  too,  had  recently  had  some 
sheep  killed  by  dogs.  At  the  time  the  dog  was  shot  he  was  moving 
away  from  where  the  goats  were  kept,  and  was  in  the  inelosure 
where  defendant  kept  the  rabbits,  and  stopped  at  the  goat  pen 
long  enough  to  be  shot.  Defendant  testified:  "Q.  Then  this  dog 
wasn't  doing  one  identical  thing  to  your  property  when  you  shot 
him?  A.  It  was  too  dark  to  see  what  he  was  doing.  Q.  You 
simply  shot  him  because  he  was  on  your  premises  ?  A.  No,  I  didn  't. 
Q.  Why  did  you  shoot  him  ?  A.  Because  I  thought  he  was  killing  my 
goats  and  rabbits.  Q.  What  made  you  think  he  was  killing  them  ? 
A.  Because  he  was  right  in  a  sheep-killing  dog's  place.'*  Appel- 
lant's counsel  argues  that  the  finding  of  the  court  below  should 
have  been  for  appellant;  that  dogs  in  this  state  are  property,  and 
no  one  has  a  right  to  kill  them  except  for  just  cause,  and  says : 

1  See  Childs'  Personal  Property,  §  34. 


Choses  IX  Possession  129 

"They  may  be  killed,  however,  to  protect  one's  property,  but  not 
simply  because  they  are  found  on  such  other's  land." 

Nop.TONi,  J. — It  has  long  been  the  settled  law  that  dogs  are 
property  in  Missouri,  and  that  no  one  has  a  right  to  kill  them 
except  for  just  cause.  It  has  always  been  the  rule,  however,  that 
they  might  be  killed  for  just  cause.  It  has  been  held  that  one  has 
no  right  to  kill  a  dog  because  it  is  found  on  his  land,  when  threaten- 
ing no  immediate  danger  to  his  property.  Fenton  v.  Bisel,  80  Mo. 
App.  135 ;  Gillum  v.  Sisson,  53  Mo.  App.  516 ;  Woolsey  v.  Haas, 
65  Mo.  App.  198;  Brauer  v.  English,  21  Mo.  App.  490;  Carpenter 
V.  Lippitt,  77  Mo.  242.  Section  1898  of  the  Revised  Statutes  of 
1899,  defining  grand  larceny,  provides  a  dog  shall  be  considered  as 
personal  property  for  the  purposes  of  that  section.  The  common 
law  gives  a  man  the  right  to  use  such  force  as  is  necessary,  and 
no  more,  to  protect  his  own  property,  and  under  this  ancient  rule, 
which  obtains  in  this  state,  there  would  be  no  question  of  the  right 
of  a  person  owning  sheep  or  goats  or  rabbits  or  other  domestic 
animals  liable  to  injury  and  death  from  dogs,  to  use  such  force  as 
is  necessary,  and  no  more,  in  the  protection  of  his  property,  where 
danger  is  imminent,  the  degree  of  force  to  be  measured  by  the 
imminence  of  the  peril.  Gillum  v.  Sisson,  53  Mo.  App.  520 ;  Brauer 
v.  English,  21  Mo.  App.  490.  In  1899  the  Legislature  furnished 
us  a  new  section  on  the  subject  of  dogs  in  this  state.  It  is  as  fol- 
lows: *'If  any  person  shall  discover  any  dog  or  dogs  in  the  act  of 
killing,  wounding  or  chasing  sheep  in  any  portion  of  this  State,  or 
shall  discover  any  dog  or  dogs  under  such  circumstances  as  to 
satisfactorily  show  that  such  dog  or  dogs  has  or  have  been  recently 
engaged  in  killing  or  chasing  sheep  or  other  domestic  animal  or  ani- 
mals, such  person  is  authorized  to  immediately  pursue  and  kill  such 
dog  or  dogs ;  provided,  however,  that  such  dog  or  dogs  shall  not  be 
killed  in  any  enclosure  belonging  to  or  being  in  lawful  possession 
of  the  owner  of  such  dog  or  dogs."  Section  6976,  Eev.  St.  1899. 
This  section  has  come  into  our  law  since  any  of  the  above  cases  on 
this  subject  have  been  decided.  The  statute  went  into  effect  a  few 
months  only  after  the  decision  of  the  case  of  Fenton  v.  Bisel,  80 
]\Io.  App.  135,  by  the  Kansas  City  Court  of  Appeals,  and  therefore 
was  not  noticed  in  the  opinion  in  that  case.  Under  the  rule  of 
the  common  law  which  obtained  prior  to  the  statute  as  annooinced 
in  the  cases  supra,  one  was  not  justified  in  killing  a  dog,  even 
though  it  was  on  his  premises,  unless  the  dog  was  actually  doing 
injury  or  attempting  to  do  injury  to  his  domestic  animals;  and 
C.  P.  P.— 9 


130  Cases  on  Personal  Property 

in  the  latter  ease  the  danger  from  the  dog  must  have  been  so 
apparent,  as  to  threaten  imminent  peril.    Gillmn  v.  Sisson,  53  Mo. 
App.  516 ;  Fenton  v.  Bisel,  80  Mo.  App.  135 ;  Woolsey  v.  Haas,  65 
Mo.  App.  198.    This  being  the  settled  law  at  the  time  the  statute 
was  enacted,  we  must  presume  that  the  Legislature  knew  the  law 
as  it  existed,  and  sought  to  make  some  change  therein  by  statutory 
innovation.     *     *     *     It  appears  that  the  first  clause  of  the  section 
is  declaratory  of  the  common  law  on  the  subject.     The  second 
clause  is  a  new  act  of  outlawry  against  the  dog,  and  one  who  kills 
a  dog  and  undertakes  to  justify  his  act  under  it  must  show  to  the 
reasonable  satisfaction  of  the  jury,  by  the  facts  and  circumstances 
surrounding  the  killing,  that  the  dog  had  recently  been  engaged 
in  killing  or  chasing  sheep  or  other  domestic  animals;  and  hence 
one  who  kills  a  dog  under  the  suspicious  circumstances  mentioned 
in  the  second  clause  does  so  at  the  risk  of  paying  the  owner  the 
value  of  the  dog,  or  of  satisfying  the  court  or  jury,  as  the  case  may 
be,  the  triers  of  the  facts,  that  he  was  outlawed  under  the  second 
clause  of  the  statute;  and  if  the  dog  be  found  either  killing  or 
chasing  the  animals,  or  under  such  circumstances  as  would  make 
it  appear  satisfactorily  to  the  jury  that  the  dog  had  been  engaged 
either  in  killing  or  chasing  the  animals,  then  the  killing  of  the  dog 
is  justifiable.    Then,  too,  this  statute  authorizes  any  person  to  kill 
the   dog  under   the   circumstances  mentioned.      It  is   immaterial 
whether  he  be  the  person  owning  the  animals  or  not.    The  evidence 
shows  that  the  respondent  and  his  neighbor  as  well  had  recently 
lost  animals  by  the  ravages  of  dogs.    This  dog  was  discovered  by 
him  in  the  very  midst  of  his  goats  and  rabbits,  in  the  night,  under 
very  suspicious  circumstances  indeed.    It  seems  to  us  that  there  is 
substantial  evidence  to  support  the  judgment  of  the  trial  court  to 
the  effect  that  the  dog  was  either  then,  or  had  recently  been,  en- 
gaged in  chasing  the  animals ;  and  this  is  sufficient  in  law,  if  it  was 
sufficient  to  satisfy  the  court  who  tried  the  facts.     *     *     * 

Our  conclusion  is  there  was  substantial  testimony  to  support  the 
finding  of  the  trial  court,  and  the  judgment  ought  to  be  affirmed. 
It  is  so  ordered.    All  concur.^ 

2  See  Childs'  Personal  Property,  §34. 


Choses  in  Possession  131 

Fish.  |  7^ 

STATE  V.  SHAW  et  al. 

67  Ohio  St.  157,  65  N.  E.  875,  60  L.  R.  A.  481.     1902. 

Indictment  for  larceny  of  fish. 

[Shaw  and  others  were  indicted  for  larceny  in  taking  a  quantity 
of  fish  from  trap  nets  set  in  the  lake  near  Cleveland,  and  owned  by 
Maurice  E.  Grow  and  John  Hough.  From  a  verdict  of  not  guilty 
the  state  excepted.] 

Da\ts,  J. — Fish  are  ferae  naturae;  yet,  "where  the  animals  or 
other  creatures  are  not  domestic,  but  are  ferae  naturae,  larceny  may 
notwithstanding  be  committed  of  them,  if  they  are  fit  for  food  of 
man,  and  dead,  reclaimed  (and  known  to  be  so),  or  confined.  Thus 
*  *  *  fish  in  a  tank  or  net,  or,  as  it  seems,  in  any  other  in- 
closed place  which  is  private  property,  and  where  they  may  be 
taken  at  any  time  at  the  pleasure  of  the  ^wner,  *  *  *  the 
taking  of  them  with  felonious  intent  will  be  larceny."  2  Russ. 
Cr.  83.  "Fish  confined  in  a  tank  or  net  are  sufficiently  secured." 
2  Bish.  Cr.  Law,  §  775. 

The  trial  judge  seems  to  have  directed  the  jury  to  return  a 
verdict  of  "not  guilty"  on  the  theory  that  the  fish  must  have  been 
confined  so  that  there  was  absolutely  no  possibility  of  escape.  We 
think  that  this  doctrine  is  both  unnecessarily  technical  and  erro- 
neous. For  example,  bees  in  a  hive  may  be  the  subject  of  larceny, 
yet  it  is  possible  for  the  bees  to  leave  the  hive  hj  the  same  place 
at  which  they  entered.  To  acquire  a  property  right  in  animals 
ferae  naturae,  the  pursuer  must  bring  them  into  his  power  and 
control,  and  so  maintain  his  control  as  to  show  that  he  does  not 
intend  to  abandon  them  again  to  the  world  at  large.  When  he  has 
confined  them  within  his  own  private  inclosure,  where  he  may 
subject  them  to  his  own  use  at  his  pleasure,  and  maintains  reason- 
able precautions  to  prevent  escape,  they  are  so  impressed  with  his 
proprietorship  that  a  felonious  taking  of  them  from  his  inclosure, 
whether  trap,  cage,  park,  net,  or  whatever  it  may  be,  will  be 
larceny.  For  such  cases,  as  is  clearly  shown  by  the  authorities 
above  quoted,  the  law  does  not  require  absolute  security  against 
the  possibility  of  escape,  and  none  of  the  authorities  cited  for  the 
defendants  in  error,  except  Norton  v.  Ladd,  5  N.  H.  203,  20  Am. 


132  Cases  on  Personam.  Property 

Dec.  573,  sustain  their  contention.  Young  v.  Hichens,  6  Q.  B.  606, 
is  not  applicable  to  this  case.  That  was  an  action  for  the  con- 
version of  fish  which  were  never  in  the  plaintiff's  net,  but  had 
been  frightened  away  from,  entering  into  the  plaintiff's  net  by 
the  defendant,  and  caught  in  his  own  net. 

In  the  present  case  the  fish  were  not  at  large  in  Lake  Erie. 
They  were  confined  in  nets,  from  which  it  was  not  absolutely  im- 
possible for  them  to  escape,  yet  it  was  practically  so  impossible ; 
for  it  seems  that  under  ordinary  circumstances  few,  if  any,  of  the 
fish  escape.  The  fish  that  were  taken  had  not  escaped,  and  it  does 
not  appear  that  they  would  have  escaped,  or  even  that  they  prob- 
ably would  have  escaped.  They  were  so  safely  secured  that  the 
owners  of  the  nets  could  have  taken  them  out  of  the  water  at 
will  as  readily  as  the  defendants  did.  The  possession  of  the  owners 
of  the  nets  was  so  complete  and  certain  that  the  defendants  went 
to  the  nets  and  raised  them  wnth  absolute  assurance  that  they  could 
get  the  fish  that  were  in  them.  We  think,  therefore,  that  the 
owners  of  the  nets,  having  captured  and  confined  the  fish,  had 
acquired  such  a  property  in  them  that  the  taking  of  them  was 
larceny. 

Exceptions  siistained. 

BuRKET,  C.  J.,  and  Spear,  Shauck,  Price,  and  Crew,  JJ., 
concur.* 


Bees. 

GOFF  V.  KILTS. 

15  Wend.  (N.  Y.)  550,  1836. 


S^ 


[Trespass  for  taking  and  destroying  a  swarm  of  bees  and 
the  honey  made  by  them.  Kilts,  who  owned  the  bees,  saw  them 
leave  the  hive,  fly  off  and  alight  in  a  tree  on  lands  owned  by  the 
Lenox  Iron  Company.  He  followed  them  and  marked  the  tree. 
Two  months  afterward,  Goff  cut  down  the  tree,  destroyed  the  bees, 
and  took  the  honey,  whereupon  Kilts  sued  him  and  recovered 
judgment.    Defendant  appealed.] 

3  Clams  or  oysters,  when  transplanted  to_a_bed.JFherenone_5rew  naturally,, 
may  be  subject  to  larceny.    People  v.  Morrison  et  al.,  194  N7  Y.  175,  96  N.  E. 
1120,  128  Am.  St.  552.  ' 

See  Childs'  Personal  Property,  §§34-112. 


Choses  in  Possession  133 

By  the  court,  Nelson,  J. — Animals  ferae  natume,  when  reclaimed 
by  the  act  and  power  of  man,  are  the  subject  of  a  qualified  prop- 
erty ;  if  they  return  to  their  natural  liberty  and  wildness,  without 
the  animus  revert endi,  it  ceases.  During  the  existence  of  the  quali- 
fied property,  it  is  under  the  protection  of  the  law  the  same  as 
any  other  property,  and  every  invasion  of  it  is  redressed  in  the 
same  manner.  Bees  are  fe7'ae  naturae,  but  when  hived  and  reclaimed, 
a  person  may  have  a  qualified  property  in  them  b}^  the  law  of 
nature,  as  well  as  the  civil  law.  Occupation,  that  is,  hiving  or 
enclosing  them,  gives  property  in  them.  They  are  now  a  common 
species  of  property,  and  an  article  of  trade,  and  the  wildness 
of  their  nature  by  experience  and  practice  has  become  essentially 
subjected  to  the  art  and  power  of  man.  An  unreclaimed  swarm, 
like  all  other  wild  animals,  belongs  to  the  first  occupant — in  other 
words,  to  the  person  who  first  hives  them ;  but  if  a  swarm  fly  from 
the  hive  of  another,  his  qualified  property  continues  so  long  as  he 
can  keep  them  in  sight,  and  possesses  the  power  to  pursue  them. 
Undei^  these  circumstances,  no  one  else  is  entitled  to  take  them. 
2  Black.  Comm.  393.    2  Kent's  Comm.  394. 

The  question  here  is  not  between  the  owner  of  the  soil  upon 
which  the  tree  stood  that  included  the  swarm  and  the  owner  of 
the  bees :  as  to  him,  the  owner  of  the  bees  would  not  be  able  to 
regain  his  property,  or  the  fruits  of  it  withoutHbeing  guilty  of 
trespass.  But  it  by  no  means  follows,  from  this  prerlicameTit,  that 
the  right  to  the_enjoyinent  of  the  property  is  lost;  that  the  bees 
therefore  becom^again  ferae  naturae,  and  belong  to  the  first  occu- 
pant. If  a  domestic  or  tame  animal  of  one  person  should  stray  to 
the  enclosure  of  another,  the  owner  could  not  follow  and  retake 
it,  without  being  liable  for  a  trespass.  The  absolute  right  of 
property,  notwithstanding,  would  still  continue  in  him.  Of  this 
there  can  be  no  doubt.  So  in  respect  to  the  qualified  property 
in  the  bees.  If  it  continued  in  the  owner  after  they  hived  them- 
selves, and  abode  in  the  hollow  tree,  as  this  qualified  interest  is 
under  the  same  protection  of  law  as  if  absolute,  the  like  remedy 
existed  in  case  of  an  invasion  of  it.  It  cannot,  I  think,  be  doubted, 
that  if  the  property  in  the  swarm  continues  while  within  sight  of 
the  owner — in  other  words,  while  he  can  distinguish  and  identify 
it  in  the  air — that  it  equally  belongs  to  him  if  it  settles  upon  a 
branch  or  in  the  trunk  of  a  tree,  and  remains  there  under  his 
ob.servation  and  charge.  If  a  stranger  has  no  right  to  take  the 
swarm  in  the  former  case,  and  of  which  there  seems  no  question. 


13-1  Cases  on  Personal.  Property 

he  ought  not  to  be  permitted  to  take  it  in  the  latter,  when  it  is 
more  confined  and  within  the  control  of  the  occupant. 

It  is  said  the  owner  of  the  soil  is  entitled  to  the  tree  and  all 
w'ithin  it.  Tliis  may  be  true,  so  far  as  respects  an  unreclaimed 
swarm.  While  it  remains  there  in  that  condition,  it  may,  like 
birds  or  other  game,  (game  laws  out  of  the  question),  belong  to 
the  owner  or  occupant  of  the  forest,  ratione  soli.  According  to  the 
law  of  nature,  where  prior  occupancy  alone  gave  right,  the  indi- 
vidual who  first  hived  the  swarm  would  be  entitled  to  the  prop- 
erty in  it ;  but  since  the  institution  of  civil  society,  and  the  regula- 
tion of  the  right  of  property  by  its  positive  laws,  the  forest  as 
well  as  the  cultivated  field,  belong  exclusively  to  the  owner,  who 
has  acquired  a  title  to  it  under  those  laws.  The  natural  right  to 
the  enjoyment  of  the  sport  of  hunting  and  fowling,  wherever 
animals  ferae  naturae  could  be  found,  has  given  way,  in  the  progress 
of  society,  to  the  establishment  of  rights  of  property  better  defined 
and  of  a  more  durable  character.  Hence  no  one  has  a  right  to 
invade  the  enclosure  of  another  for  this  purpose.  He  would  be  a 
trespasser,  and  as  such  liable  for  the  game  taken.  An  exception 
may  exist  in  the  ease  of  noxious  animals,  destructive  in  their 
nature.  Mr.  Justice  Blackstone  says,  if  a  man  starts  game  in 
another's  private  grounds,  and  kills  it  there,  the  property  belongs 
to  him  in  whose  ground  it  is  killed,  because  it  was  started  there, 
the  property  arising  ratione  soli.  2  Black  Com.  419.  But  if  ani- 
mals ferae  naturae  that  have  J)een  reclahned^  and  a  qualified  prop- 
erty obtained  in  them,  escape  into  the  private  grounds_  ojLaiHithfir 
in  a  way  that  does  not  restore  them  to  their  natural  condition,  a 
different  rule  obviously  applies.  They  are  then  not  exposed  to 
become  the  property  of  the  first  occupant.  The  right  of  the  owner 
continues,  and  though  he  cannot  pursue  and  take  them  without 
being  liable  for  a  trespass,  still  this  difficulty  should  not  operate 
as  an  abandonment  of  the  animals  to  their  former  liberty.  The 
rights  of  both  parties  should  be  regarded,  and  reconciled  as  far 
as  is  consistent  with  a  reasonable  protection  of  each.  The  cases 
of  Heermance  v.  Vernay,  6  Johns.  R.  5,  and  Blake  v.  Jerome,  14 
id.  406,  are  authorities  for  saying,  if  any  were  wanted,  that. the 
inability  of  the  owner  of  a  personal  chattel  to  retake  it  while^n 
the  premises  of  another,  without  committing  a  trespass,  does  not 
impair  his  legal  interest  m  the  property.  Ti  only  embarrasses 
the  use  or  enjoyment  of  it.  The  owner  of  the  soil,  therefore, 
acquiring  no  right  to  the  property  in  the  bees,  the  defendant  below 
cannot  protect  himself  by  showing  it  out  of  the  plaintiff  in  that 


Choses  m  Possession  135 

way.  It  still  continues  in  him,  and  draws  after  it  the  possession 
sufficient  to  maintain  this  action  against  a  third  person,  who  invades 
it  by  virtue  of  no  other  claim  than  that  derived  from  the  law  of 
nature.  This  case  is  distinguishable  from  the  eases  of  Gillet  v. 
Mason,  7  Johns.  R.  16,  and  Ferguson  v.  Miller,  1  Cowen,  243.  The 
first  presented  a  question  between  the  finder  and  a  person  inter- 
ested in  the  soil;  the  other  between  two  persons,  each  claiming 
as  the  first  finder.  The  plaintiff  in  the  last  case,  though  the  first 
finder,  had  not  acquired  a  qualified  property  in  the  swarm  accord- 
ing to  the  law  of  prior  occupancy.  The  defendant  had.  Besides, 
the  swarm  being  unreclaimed  from  their  natural  liberty  while  in 
the  tree,  belonged  to  the  owner  of  the  soil  ratiane  soli.  For  these 
reasons  I  am  of  opinion  that  the  judgment  of  the  court  below 
should  be  affirmed. 

Judgment  affirmed^ 


Monet. 
EXAUBER  et  al.  v.  BIGGERSTAFF  et  al. 
47  Wis.  551,  3  N.  W.  625,  32  Am.  Rep.  773.     1879. 
The  facts  are  stated  in  the  opinion. 

Ryan,  C.  J. — The  controlling  question  in  this  case  is  whether 
the  certificate  of  deposit  stated  in  the  proceedings  is  negotiable. 

"A  promissory  note  may  be  defined  to  be  a  written  engagement 
by  one  person  to  pay  another  person  therein  named,  absolutely 
and  unconditionally,  a  certain  sum  of  money  at  a  time  specified 
therein."  Story  on  Prom,  Notes,  §  1.  The  ordinary  form  of  a 
certificate  of  deposit  of  money  falls  precisely  within  the  definition, 
and  it  seems  strange  that  there  ever  was  a  doubt  that  it  was  in 
law  a  negotiable  promissory  note.  O'Neill  v.  Bradford,  1  Pin. 
390,  and  cases  there  cited.  Such  doubt,  however,  may  now  be 
considered  at  rest.  Kilgore  v.  Bulkley,  14  Conn.  362;  Bank  v. 
Merrill,  2  Hill,  295 ;  Miller  v.  Austen,  13  How.  218. 

The  learned  counsel  for  the  respondents  concedes  this;  but  he 
takes  the  position  that  the  certificate  of  deposit  in  question  is  not 

4  See  Childs*  Pcraonal  Property,  §§34,  112.  Wild  Animals.  See  Geer  v. 
State  of  Connecticut,  p.  260. 


136  Cases  on  Personal  Property 

a  promissory  note,  because  it  is  not  payable  in  money.  It  is  for 
so  many  dollars,  payable  in  currency;  and  the  learned  counsel 
contends  that  the  word  currency  does  not  express  or  imply 
money     *     *     * 

Money  is  a  generic  and  comprehensive  term.  It  is  not  a  synonym 
of  coin.  It  includes  coin,  but  is  not  confined  to  it.  It  includes 
whatever  is  lawfully  and  actually  current  in  buying  and  selling 
of  the  value  and  as  the  equivalent  of  coin.  By  universal  consent, 
under  the  sanction  of  all  courts  everywhere,  or  almost  everywhere, 
bank-notes  lawfully  issued,  actually  current  at  par  in  lieu  of  coin, 
are  money.  The  common  term,  paper  money,  is  in  a  legal  sense 
quite  as  accurate  as  the  term  coined  money. 

The  question  whether  bank  notes  are  money  or  only  clioses  in 
action,  was  directly  involved  in  Miller  v.  Race,  1  Burr.  452. 

*'The  whole  fallacy  of  the  argument,"  says  Lord  Mansfield,  in 
delivering  the  unanimous  opinion  of  the  court,  ''turns  upon  com- 
paring bank-notes  to  what  they  do  not  resemble  and  what  they 
ought  not  to  be  compared  to,  viz :  to  goods,  or  to  securities,  or 
documents  for  debts. 

"Now  they  are  not  goods,  not  securities,  nor  cloeuments  for 
debts,  nor  are  so  esteemed ;  but  are  treated  as  money,  as  cash,  in 
the  ordinary  course  and  transaction  of  business,  by  the  general 
consent  of  mankind,  which  gives  them  the  credit  and  currency  of 
money  to  all  intents  and  purposes.  They  are  as  much  money  as 
guineas  themselves  are,  or  any  current  coin  that  is  used  in  common 
payments  as  money  or  cash. 

"They  pass  by  a  will,  which  bequeaths  all  the  testator's  money 
or  cash,  and  are  never  considered  as  securities  for  money,  but  as 
money  itself.  Upon  Lord  Ailesbury's  will  £900  in  bank-notes  was 
considered  as  cash.  On  payment  of  them,  wherever  a  receipt  is 
required,  the  receipts  are  always  given  as  for  money,  not  as  for 
securities  or  notes. 

"So  in  bankruptcies,  they  cannot  be  followed  as  identical  and 
distinguishable  from  money,  but  are  always  considered  as  money 
or  cash. 

"It  is  pity  that  reporters  sometimes  catch  at  quaint  expres- 
sions that  may  happen  to  be  dropped  at  the  bar  or  bench,  and 
mistake  their  meaning.  It  has  been  quaintly  said  'that  the  reason 
why  money  cannot  be  followed  is  because  it  has  no  ear-mark;' 
but  this  is  not  true.  The  true  reason  is,  upon  account  of  the 
currency  of  it  it  cannot  be  recovered  after  it  has  passed  in  currency. 
So,  in  case  of  money  stolen,  the  true  owner  cannot  recover  it  after 


Chosis  est  Possession  137 

it  lias  been  paid  away  fairly  and  honestly  upon  a  valuable  and 
hana  fide  consideration;  but  before  money  has  passed  in  currency 
an  action  may  be  brought  for  the  money  itself ^    *     *     * 

* '  Apply  this  to  the  case  of  a  bank-note :  an  action  may  lie 
against  the  finder,  it  is  true,  (and  it  is  not  at  all  denied),  but  not 
after  it  had  been  paid  away  in  currency.  And  this  point  has  been 
determined,  even  in  the  infancy  of  bank-notes,  for  1  Salk.  126, 
M.  10,  W.  3,  at  nisi  prius,  is  in  point.     *     *     * 

It  has  also  been  very  generally  followed  in  this  country.  In 
Bank  of  U.  S.  v.  Bank  of  Georgia,  10  AVteat.  333,  Mr.  Justice 
Story,  in  delivering  the  opinion  of  the  court,  says :  * '  Bank-notes 
constitute  a  part  of  the  common  currency  of  the  country,  and, 
ordinarily,  pass  as  money.  When  they  are  received  as  payment 
the  receipt  is  always  given  for  them  as  money.  They  are  a  good 
tender  as  money,  unless  specially  objected  to;  and,  as  Lord  Mans- 
field observed,  in  Miller  v.  Race,  1  Burr.  Rep.  457,  they  are  not, 
like  bills  of  exchange,  considered  as  mere  securities  or  documents 
for  debts." 

Here  is  a  distinction,  recognized  in  many  of  the  cases,  between 
currency  which  is  money  and  currency  which  is  legal  tender.  To 
be  money,  part  of  the  circulating  medium,  it  is  not  essential  that 
currency  should  be  legal  tender  against  the  wishes  of  the  person 
to  whom  it  is  tendered.  Even  coined  money  is  not,  under  all  cir- 
cumstances, legal  tender.  Sears  v.  Dewing,  14  Allen,  413 ;  Mather 
V.  Kinnick,  51  Pa.  St.  425. 

But  paper  currency — ^bank-notes — ^which  are  current  de  jure  et 
de  facta,  are  legal  tender  unless  specially  objected  to  at  the  time 
of  tender,  for  the  reason  that  they  are  money,  though  not  abso- 
lutely legal  tender.  With  some  exceptions  this  doctrine  is  general 
in  this  country.     *     *     * 

In  fact  almost  all  civilized  countries,  including  this  country, 
have  a  mixed  circulation  of  coin  and  bank-notes.  These  constitute 
the  currency  of  the  countrj'- — its  money;  and  the  general  term, 
currency,  includes  both.  Currency,  therefore,  means  money — 
coined  money  and  paper  money  equally.  But  it  means  money  only ; 
and  the  only  practical  distinction  between  paper  money  and  coined 
money,  as  currency,  is  that  coined  money  must  generally  be 
received,  paper  money  may  generally  be  specially  refused,  in  pay- 
ment of  debt;  but  a  payment  in  either  is  equally  made  in  money — 
equally  good.  The  confusion  in  the  cases  appears  to  have  arisen 
for  want  of  proper  distinction  between  money  which  is  current 
and  money  which  is  legal  tender.     The  property  of  being  legal 


138  Cases  on  Personal  Property 

tender  is  not  necessarily  inherent  in  money;  it  generally  belongs 
no  more  to  inferior  coin  than  to  paper  money. 

In  the  use  of  the  term,  currency  does  not  necessarily  include 
all  bank-notes  in  actual  circulation;  for  all  bank-notes  are  not 
necessarily  money.  In  this  use  of  the  term,  currency  includes  only 
such  bank-notes  as  are  current  de  jure  et  de  facto  at  the  locus  in 
quo;  that  is,  bank-notes  which  are  issued  for  circulation  by  author- 
ity of  law,  and  are  in  actual  and  general  circulation  at  par  with 
coin,  as  a  substitute  for  coin,  interchangeable  with  coin ;  bank-notes 
which  actually  represent  dollars  and  cents,  and  are  paid  and 
received  for  dollars  and  cents  at  their  legal  standard  value.  "What- 
ever is  at  a  discount — that  is,  whatever  represents  less  than  the 
standard  value  of  coined  dollars  and  cents  at  par — does  not  prop- 
erly represent  dollars  and  cents,  and  is  not  money;  is  not  prop- 
erly included  in  the  word  currency.  In  this  sense  national  bank- 
notes, which  are  not  legal  tender,  are  now  as  much  currency  as 
treasury  notes,  which  are  legal  tender. 

This  construction  of  the  term  currency  might,  perhaps,  properly 
be  extended  to  the  term  current  funds.  It  must  extend  to  the 
latter  term  whenever  it  is  used  in  the  legal  sense  of  money.  Bank- 
ers and  money-dealers  cannot,  by  choice  or  use  of  terms,  give  the 
character  and  attributes  of  money  to  anything  not  money — to 
anything  of  less  value  than  money. 

The  legislature  has  doubtless  power  to  make  negotiable  paper 
other  than  for  the  payment  of  money,  (Price  v.  Bank,  43  Wis. 
267)  ;  but  where  a  statute  is  plainly  intended  to  apply  to  money, 
every  term  used  to  indicate  money,  not  commodities,  must  be  held 
to  signify  money  in  the  sense  in  which  that  term  is  here  used. 

The  certificate  of  deposit  in  this  case  calls  for  so  many  dollars ; 
that  is  to  say,  for  so  much  money.  It  makes  them  payable  in 
currency,  which  also  means  money.  It  could  be  paid  only  in  money. 
It  was,  therefore,  clearly  negotiable  under  the  statute  of  Anne. 
Whether  the  holder  could  claim  its  payment  in  legal  tender  is  a 
different  question,  not  in  this  case,  and  not  passed  upon. 

The  negotiability^  of  certificates  of  deposit  is  of  vast  impor- 
tance in  commerce.  Their  want  of  negotiability  upon  slight 
grounds  would  go  largely  to  prevent  their  usefulness  in  the  course 
of  business;  and  this  court  considers  it  far  wiser  to  hold  them 
paj'^able  in  money,  when  the  terms  used  will  admit  of  that  con- 
struction, than  to  hold  them  not  to  be  negotiable  on  the  ground 
of  the  particular  terms  used. 


Choses  in  Possession  139 

The  judgment  is  reversed,  and  the  cause  remanded  to  the  court 
below,  Tvith  directions  to  render  judgment  for  the  garnishee,  the 
appellant  here.' 


Tender. 
Must  he  Vn€onditwnal. 
POTTS  V.  PLAISTED. 
*        30  Mich.  149.     1874. 
The  facts  are  stated  in  the  opinion. 

Christl\ncy,  J. — In  each  of  these  cases  the  bill  is  to  foreclose 
a  mortgage,  and  the  only  defense  relied  upon,  against  a  decree  of 
foreclosure  and  sale,  was  a  tender  of  the  amount  due  upon  the 
respective  mortgages  before  the  filing  of  the  bill,  and  the  conse- 
quent discharge  of  the  lien  of  the  mortgage. 

The  only  question,  therefore,  is  one  of  fact,  to  be  decided  upon 
the  evidence  in  the  record,  whether  a  tender  was  made  of  the 
amount  due  upon  the  respective  mortgages,  in  such  manner  that 
complainant,  the  holder  of  the  mortgages,  understood  it  at  the 
time  as  a  present,  absolute  and  unconditional  tender  of  the  amount, 
and  that  it  was  intended  to  be  then  and  there  paid  down  in 
extinguishment  of  the  mortgages.  If  such  a  tender  was  clearly 
proved,  the  lien  of  the  mortgages  was  thereby,  ipso  facto,  dis- 
charged, and  complainant  could  only  look  to  the  personal  respon- 
sibility of  the  parties  liable  for  the  mortgage  debt ;  and  this,  though 
the  tender  was  not  kept  good,  so  that  complainant  might  have 
taken  the  money  had  he  subsequently  concluded  to  do  so.  Moyna- 
han  V.  Moore,  9  Mich.  9 ;  Carathers  v.  Humphrey,  12  Mich.,  270 ; 
Van  Husan  v.  Kanouse,  13  Mich.  303. 

In  view  of  the  serious  consequences  to  the  holder  of  a  mortgage, 
upon  the  refusal  of  a  tender — consequences  which  may  often 
amount  to  the  absolute  loss  of  the  entire  debt — and  in  view  of  the 
strong  temptation  which  must  exist  to  contrive  merely  colorable 
or  sham  tenders,  not  intended  in  good  faith,  we  think  the  evidence 
should  be  so  full,  clear  and  satisfactory,  as  to  leave  no  reasonable 

0  See  Childs '  Personal  Property,  §  48. 


140  Cases  on  Personal  Property 

doubt  that  the  tender  was  so  made  that  the  holder  must  have 
understood  it  at  the  time  to  be  a  present,  absolute  and  uncondi- 
tional tender,  intended  to  be  in  full  payment  and  extinguishment 
of  the  mortgage,  and  not  dependent  upon  his  first  executing  a 
receipt  or  discharge,  or  any  other  contingency.  And  the  holder 
must,  in  every  case,  have  a  reasonable  opportunity  to  look  over 
the  mortgage  and  accompanying  papers,  to  calculate  and  ascertain 
the  amount  due;  and  if  such  papers  are  not  present,  he  must  be 
allowed  a  reasonable  time  to  get  them  and  make  the  calculation. 
He  cannot  be  bound,  under  the  penalty  or  at  the  hazard  of  losing 
his  entire  debt,  to  carry  at  all  times,  in  his  head,  the  precise 
amount  due,  on  any  particular  day. 

In  view  of  these  principles,  we  have  carefully  examined  the 
evidence  in  these  cases,  and  we  are  not  satisfied,  whatever  may 
have  been  the  intention  of  the  parties  attempting  to  make  the 
tender,  that  the  complainant  was  made  fairly  and  clearly  to  under- 
stand the  transaction  as  a  then  present,  absolute  and  uncondi- 
tional tender  of  the  amount  due  upon  the  respective  mortgages,  not 
dependent  upon  his  first  executing  a  receipt  or  discharge.  The 
mortgages  were  not  present,  nor  in  complainant's  hands,  but  had 
been  left  by  him,  and  then  were,  in  the  hands  of  Mr.  Harris,  at 
Port  Huron,  some  miles  away.  And  though  it  does  not  clearly 
appear  that  complainant  made  any  objection  to  the  amount,  it 
does  appear  that  he  had  no  opportunity  at  that  particular  time  to 
examine  the  papers,  and  his  objection,  or  at  least  one  of  his  objec- 
tions, to  receiving  the  money  then,  was  that  he  had  not  the  mort- 
gages there,  but  that  they  were  in  Harris'  hands,  in  Port  Huron. 
"We  think,  also,  the-e  is  much  reason  for  believing  that  complainant 
understood  the  final  conclusion  of  the  defendants,  seeking  to  make 
the  tender,  to  be,  tliarthey~would  leave_the  jnoney  on  deposit  for" 
him  m  Port  Huron,  which  they  failed  to  do,  and  that^ge~T^d 
come  up  anXget  it,  and  discharge  the  mortgages. 
""^e'l^eiTot,  therefore,  satisfied  that  the  defense  of  tender  is 
fairly  established  by  the  evidence.  The  decree  of  the  court  below 
for  foreclosure  and  sale  must,  therefore,  be  affirmed,  with  costs. 

The  other  justices  concurred.^ 

6  See  Childs '  Personal  Property,  §  50. 


^^t 


Ct-T, 


Choses  in  Possession  lil 

Proper  Sum. 

MOORE  V.  NORMAN. 

52  Mimu  83,  53  N.  Tf.  809, 18  L.  R.  A.  359.    1892. 

The  facts  are  stated  in  the  opinion. 

Dickinson,  J. — The  defendant,  to  secure  two  promissory  notes 
executed  by  him  to  the  plaintiff,  mortgaged  certain  personal  prop- 
erty to  her.  She  prosecutes  this  action  to  recover  possession  of  a 
part  of  the  mortgaged  property  by  virtue  of  her  rights  as  such 
mortgagee.  A  former  appeal  in  this  action  is  reported  in  43  Minn. 
428,  45  N.  W.  Rep.  857.  The  only  issue  to  which  reference  is  now 
necessary  is  as  to  whether  certain  payments  and  a  tender  of  pay- 
ment made  by  the  defendant  were  sufficient  and  effectual  to  dis- 
charge the  mortgages.  The  whole  transaction  on  the  part  of  the 
plaintiff  was  conducted  by  one  George  R.  Moore,  who  w^as  her 
general  agent.  Long  after  the  maturity  of  the  notes  the  defendant 
made  a  tender  of  payment  to  the  plaintiff,  which  on  his  part  is 
claimed  to  have  been  sufficient  in  amount,  with  pajanents  which 
had  been  previously  made,  to  complete  the  payment  of  the  debt,  and 
hence  to  discharge  the  mortgages.  Moore  v.  Norman,  43  IMinn. 
428,  45  N.  W.  Rep.  857.  The  plaintiff,  however,  then  claimed  that 
the  amount  tendered  was  not  sufficient  to  pay  the  debt;  and 
whether  it  was  so  or  not  was  one  of  the  issues  in  this  ca.se,  in 
respect  to  which  the  plaintiff's  contention,  that  the  amount  was 
insufficient,  was  .supported  by  evidence  which  w^ould  have  sustained 
a  verdict  in  her  favor.  The  evidence  tended  to  show  that  the  tender 
was  accompanied  by  a  demand  that  the  notes  be  surrendered ;  that 
such  surrender  was  refused,  a  larger  sum  being  claimed  to  be  due ; 
but  that  the  plaintiff  (by  her  agent,  who  held  the  notes)  offered 
to  receive  the  money  tendered,  and  indorse  it  on  the  notes,  which 
offer  the  defendant  refused  to  accept.  The  court,  at  the  request  of 
the  defendant,  charged  the  jury  to  the  effect  that  if  the  amount 
tendered  was  sufficient  the  defendant  had  a  right  to  demand  the 
surrender  of  his  notes.  This  constitutes  one  of  the  errors  as.signed. 
We  think,  as  applied  to  the  circumstances  of  this  case,  this  instruc- 
tion was  erroneous.  It  may  be  stated  as  a  gonerril  proposition, 
applicable  at  least  where  it  appears  that  a  larger  sum  than  that 
tendered  is  in_good  faith_clajmed  to  be  due,  that  the  tender  is  not 
effectual  a.s  such  if  it  h^  pnnplprl  with  such  cijnditions  th^t^the 


142  Cases  on  Personal-  Property 

acceptaMe-iil-iU--as.  tendered^,  will  involve  an  admission  _by  the 
Ji^y  accept^ig^itthatuomoreisdue.     *     *     *     Thayer  v.  Brack- 
ett^  12  Mass.  450;  Wood  v.  Hitchcock,  20  Wend.  47;  Noyes  v. 
Wyckoff,  114  N.  Y.  204,  21  N.  E.  Rep.  158 ;  Holton  v.  Brown,  18  Vt. 
224.    See,  further,  in  support  of  the  general  rule  that  a  tender,  to 
be  effectual  must  be  absolute  and  unconditional.    Moore  v.  Norman, 
43  Minn.  428,  434,  45  N.  W.  Rep.  857 ;  Bank  v.  Hove,  45  Minn. 
40,  42,  47  N.  W.  Rep.  449;  Balme  v.  Wambaugh,  16  Minn.  116, 
(Gil.  106).     The  most  common  and  familiar  illustrations  of  the 
proposition  above  stated  are  cases  where  the  tender  is  made  as 
being  all  that  is  due,  or  as  payment  in  full.    It  is  everywhere  held 
that  such  a  tender  is  not  good.     The  debtor  has  no  right  to  the 
benefit  of  a  tender,  as  having  the  effect  of  a  payment,  when  it  is 
burdened  with  such  a  condition  that  the  creditor  cannot  accept  the 
money  without  compromising  his  legal  right  to  recover  the  further 
sum  which  he  claims  to  be  due.     This  case  falls  within  the  same 
principle.    By  offering  to  pay  the  money  only  upon  the  condition 
that  the  plaintiff  deliver  up  the  notes  (if  such  was  the  fact),  the 
defendant  insisted  upon  a  condition  the  acceptance  of  which  would 
at  least  seriously  compromise  the  right  of  the  plaintiff  to  recover 
any  more,  even  though  it  should  be  true  that  the  amount  unpaid 
exceeded  the  sum  tendered.     The  acceptance  of  the  money  and  jthe 
surrender  of  the  notes  would  be  at  least  strong  evidence  against 
h.er,  in  the  nature  of  an  admission,  that  the  notes  were  thereby 
fully  paid.     The  defendant  should  not  be  heard  to  assert  that  a 
mere  offer  to  pay  a  specified  sum,  less  than  was  supposed  by  the 
other  party  to  be  due,  has  the  effect  of  a  payment,  so  as  to  dis- 
charge the  mortgage,  when  the  offer  was  burdened  with  such  a 
condition.     It  was  enough   for  his  protection   that   the   plaintiff 
would  have  received  the  money  offered  and  have  indorsed  its  pay- 
ment on  the  notes,  which  were  already  overdue  and  still  in  the 
hands  of  the  plaintiff.     If  the  defendant  rejected  this  offer,  and 
insisted  upon  the  surrender  of  the  notes,  the  natural  and  only 
reasonable  construction  to  be  put  upon  his  conduct  was  that  he 
insisted  that  the  tender,  if  accepted,  should  be  accepted  as  pay- 
ment of  the  notes  in  full.     If  that  was  the  effect  of  the  tender,  it 
was  bad,  under  all  the  authorities.     A  mere  tender  should  not  be 
effectual_to  discharge  the  lien  of  a  mortgage  unless  it  be  certainly 
sufficient  in  amount,  and  unburdened  with  any  conditions  which 
~^  debtor  has  not  a  clear  right  to  impose.     See  Moore  v.  Norman 


Choses  in  Possession  143 

and  Bank  v.  Hove,  supra.    A  new  trial  must  be  granted  for  the 
reason  above  stated.     *     *     * 

Order  reversed.'^ 


Check.  ** 

GUNBY  V.  INGRAM  et  ux. 

57  Wash.  97, 106  Pac.  495,  36  L.  R.  A.  (N.  S.)  232.    1910. 

The  facts  are  stated  in  the  opinion. 

Dunbar,  J. — This  is  an  appeal  from  a  real  estate  foreclosure 
judgment.  On  the  5th  day  of  June,  1907,  the  appellants  executed 
two  promissory  notes  to  Lusetta  Newell  in  the  sum  of  $5,000,  which 
notes  were  secured  by  a  real  estate  mortgage  on  certain  property 
belonging  to  appellants.  One  note  was  duly  paid,  and  the  other 
note  of  $2,500  remained  unpaid.  This  note  provided  for  maturity 
of  the  whole  debt  in  case  of  nonpayment  of  contract  when  due. 
There  was  an  installment  of  interest  due  on  the  unpaid  note  on 
the  5th  day  of  March,  1908.  It  is  claimed  by  appellants  that  by 
agreement  wath  Lusetta  Newell  they  were  given  until  April  1st 
to  pay  the  interest  due  IMarch  5th,  viz.,  $50.  It  is  the  contention 
of  the  respondent  that  there  was  no  agreement  to  this  effect,  but 
that  Lusetta  Newell  simply  allowed  the  interest  to  remain  unpaid 
without  taking  any  action  in  the  matter.  But  we  are  satisfied  from 
an  examination  of  the  record  that  there  was  an  agreement  to  that 
effect.  However,  inasmuch  as  the  appellants  did  not  pay  the  in- 
terest according  to  the  agreement,  it  seems  to  be  unnecessary-  to 
discuss  that  proposition.  On  the  evening  of  the  2d  day  of  April 
appellant  L.  P.  Ingram  mailed  to  Lusetta  Newell  a  check  for  $50, 
installment  of  interest,  which  it  is  admitted  was  received  by  her 
on  the  morning  of  the  3d  day  of  April.    On  the  2d  day  of  April 

7  Tender  must  be  made  at  fit  time  and  place.  Waldron  v.  Murphy,  40 
Mich.  668. 

Money  must  be  actually  produced  and  proffered,  unless  the  creditor  expressly 
or  impliedly  waives  its  production.    Pinney  v.  Jorgenson,  27  Ming.  26,  6  N.  W. 

Contract  to  pay  in  gold  and  silver  coins  is  enforceable.  (Legal  Tender 
Cases  —  Bronson  v.  Ehodes,  74  U.  S.  229,  19  L.  Ed.  141.) ;  McGoon  et  aJ.  v. 
Shirk,  54  111.  408,  5  Am.  Rep.  122. 

See  Childs '  Personal  Property,  §  50 


144  Cases  on  Personal.  Property 

Liisetta  Newell  sold  and  assigned  the  note  in  question  to  respondent 
J.  C.  Gunby,  who  prepared  his  complaint  in  foreclosure  and  filed 
the  same  on  the  next  day,  the  3d  of  April.  Lusetta  Newell  did  not 
apply  the  check  to  the  payment  of  the  interest  due,  and  in  a  few 
days  it  was  sent  back  to  the  appellant  L.  P.  Ingram.  The  appel- 
lants were  not  notified  of  the  assignment  of  the  note  to  the 
respondent,  excepting  constructively  by  the  recording  of  the  assign- 
ment and  through  the  service  of  the  complaint.  These  matters 
which  we  have  recited  were  set  up  in  the  answer,  together  with 
an  allegation  of  tender  to  the  clerk  of  the  court  of  the  $50  due. 
In  July,  after  the  motions  and  preliminary  pleas  were  made,  a 
supplemental  complaint  was  filed,  in  which  it  was  alleged  that  the 
sum  of  $2,500  gold  coin  or  principal  sum  mentioned  in  the  prom- 
issory note  spoken  of  before,  together  with  interest  thereon,  had 
become  due  and  payable,  and  still  remained  unpaid,  and  relief 
was  asked  accordingly. 

*  *  *  So  far  as  this  case  is  concerned,  it  is  narrowed  down 
to  the  proposition  of  whether  a  legal  tender  was  made  prior  to  the 
commencement  of  the  action.  While  it  is  true  that  the  assignment 
of  this  note  was  made  to  the  respondent  before  the  reception  of  the 
check  by  Lusetta  Newell,  the  appellants  had  no  notice  of  the 
assignment,  and  the  sending  of  the  check  to  Lusetta  Newell  would 
be  a  sufficient  tender,  so  far  as  the  parties  are  concerned,  if  it  were 
otherodse  good;  for  the  relation  of  the  debtor  to  the  purchaser  of 
the  claim,  when  without  notice  to  the  debtor,  is  legally  the  same 
as  to  the  original  creditor. 

Then,  the  pertinent  question  is:  "Was  there  a  legal  tender  made 
to  Lusetta.  Newellby  the  sending  of  the  check  and  the  receiving 
of  the  same  by  her  before  the  commencement  of  the  action,  which 
It  is  concededTwas^the  only  notice  of  option  given?  There  was 
some  attempt  to  show  notice  by  sFowTng  that'notlce  had  been  given 
to  the  brother  of  appellant  L.  P.  Ingram,  but  we  think  it  was 
properly  excluded  by  the  court;  and,  so  far  as  the  record  is  con- 
cerned, it  must  be  conceded  that  no  other  notice  was  given.     It 


may  be  conceded,  we  think,  under  universal  authority  that  a 
"strictly  good  tender~caiinot  be^made  by  the  offer  of  a  check  for 
The  amount~due]  But  it  is"well  established  that  the  creditor  may 
waive  the  character  of  the  money  which  is  tendered  by  raising  no 
objection  to  the  payment,  for  the  reason  that  it  is  not  the  character 
of  money  or  specie  that  is  called  for  in  the  obligation,  or  by 
raising  some  other  objection  which  would  exclude  the  idea  of 
objecting  on  that  ground.    Considering  the  fact,  which  is  a  matter 


Choses  in  Possession  145 

of  common  knowledge,  that  probably  90  per  cent  of  the  business 
of  the  mercantile  Avorld  is  now  done  through  the  medium  of  checks, 
drafts,  etc.,  instead  of  by  the  transfer  of  gold  and  silver  coin  or 
even  of  any  other  species  of  legal  tender,  it  would  be  a  dangerous 
rule  to  announce,  and  one  which  could  easily  be  turned  into  an 
engine  of  oppression  if  the  tender  of  a  payment,  especially  where 
it  involved  the  maturing  of  obligations  which  were  not  then  due, 
could  not  be  made  by  check,  where  no  question  was  raised  as  to  the 
value  of  the  check  tendered,  and  especially,  as  in  this  case,  where 
it  was  shown  that  the  former  payments  involved  in  this  transaction 
had  been  made  by  checks  which  were  not  objected  to  by  the 
creditor.  This  state  of  facts  was  testified  to  by  the  appellant 
L.  P.  Ingram :  That  the  payment  of  the  $2,500  which  had  thereto- 
fore been  made  and  all  the  payments  of  the  interest  had  been 
made  in  that  manner.  *  *  *  Lusetta  Newell  herself  did  not 
testify  on  that  subject,  and  the  only  testimony  is  that  of  the  appel- 
lant Ingram  which  bears  the  impress  of  truth;  and  we  think  it  is 
reasonably  established  that  the  payments  had  theretofore  been 
made  through  the  medium  of  cheeks.  If  that  is  true,  it  would  be 
an  injustice  to  the  appellants  to  refuse  to  apply  the  payment  to 
the  interest  due,  and  mature  a  large  amount  of  money  which  was 
not  then  otherwise  due,  without  any  notification  to  the  appellants 
of  the  rea.son  for  the  refusal.     *     *     * 

The  judgment  will  therefore  be  reversed  and  the  cause  di.smissed. 

RuDKiN,  C.  J.,  and  P.ajiker,  Mount,  and  Crow,  J  J.,  concur.^ 


Mutilated  Coin. 

CINCINNATI  NORTHERN  TRACTION  CO.  v.  ROSNAGLE. 

84  Ohio  St.  311,  95  N.  E.  884,  35  L.  R.  A.  (N.  S.)  1030.    1911. 

The  facts  as  stated  by  the  court  are  as  follows : 

This  was  a  proceeding  brought  in  the  common  pleas  court  of 
Warren  county,  by  Howard  F.  Rosnagle,  an  infant,  by  his  next 
friend,  against  the  Cincinnati  Northern  Traction  Company.  On 
May  21,  1907,  the  infant  resided  at  Franklin,  in  Warren  county, 
and  was  about  10  years  old.     On  that  day  he  went  to  the  city  of 

8  See  Childs '  Personal  Property,  §  50. 
C.  P.  P.— 10 


146  Cases  on  Personx\.l  Property 

MiddletoA\Ti,  in  Butler  county,  on  an  errand,  and  in  the  evening 
boarded  one  of  the  defendant's  cars  at  Middletown  to  go  back  to 
his  home.  When  the  car  was  near  the  outskirts  of  the  city,  the 
conductor  asked  him.  for  his  fare,  and  he  tendered  him  a  nickel. 
The  conductor  refused  to  accept  the  nickel  and  requested  him  to 
leave  the  car,  which  he  did.  The  petition  sets  forth  these  facts, 
together  with  the  further  allegation  that  the  night  was  dark,  and 
that  he  became  greatly  frightened  and  went  to  the  home  of  a 
nearby  resident,  who  gave  him  care  and  assistance,  and  it  alleges 
that  he  was  damaged  in  the  sum  of  $1,000. 

The  answer  of  the  defendant  admits  the  tender  of  the  nickel 
and  all  the  other  facts,  except  as  to  damages,  and  further  answering 
says  that  said  Howard  F.  Rosnagle  got  upon  the  car  of  said 
defendant  at  or  near  Third  street,  in  the  city  of  Middletown,  Ohio, 
and  he  rode  upon  said  car  to  the  east  corporation  line  of  said  city ; 
that  when  the  conductor  of  said  car  demanded  of  him  his  fare  he 
tendered  to  said  conductor  the  coin  commonly  termed  a  nickel; 
that  said  coin  had  been  mutilated,  defaced,  and  w^as  cracked;  that 
the  conductor  of  said  car  informed  said  Howard  F.  Rosnagle  that 
he  could  not  take  said  nickel  owing  to  the  condition  that  the  same 
was  in,  and  said  Rosnagle  informed  the  conductor  that  said  nickel 
was  all  the  money  he  had,  and  thereupon  said  conductor  informed 
said  Rosnagle  that  he  would  have  to  pay  his  fare  or  get  otf  the 
car;  that  said  Rosnagle  thereupon  voluntarily  left  the  car  at  said 
point. 

Plaintiff  filed  a  reply,  in  which  he  denies  that  he  voluntarily  left 
said  car  of  the  defendant.  On  the  triat  a  verdict  was  returned 
in  favor  of  the  plaintiff,  upon  which  judgment  was  entered.  This 
judgment  was  affirmed  by  the  circuit  court,  and  error  is  now 
prosecuted  here  to  reverse  the  judgments  below. 

The  nickel  that  was  tendered  by  plaintiff  to  the  conductor  is 
in  evidence,  and  it  is  conceded  that  five  cents  was  the  regular  and 
legal  fare  between  the  points  named.  The  error  alleged  and  relied 
on  by  the  plaintiff  in  error  is  that  the  court  of  common  pleas 
charged,  as  a  matter  of  law,  that  the  particular  nickel  tendered 
and  introduced  in  evidence  was  legal  money  of  the  United  States, 
and  a  legal  tender  for  five  cents.  It  is  claimed  that  there  are  other 
errors  in  the  charge  which  will  be  noticed  in  the  opinion. 

Johnson,  J. — There  is  no  claim  that  the  five-cent  piece  which 
was  tendered  by  plaintiff  was  not  originally  a  genuine  coin  issued 
by  the  United  States.    The  testimony  and  an  inspection  of  the  coin 


Choses  in  Possession  147 

disclose  such  genuine  character.  It  has  the  appearance  of  being 
somewhat  bruised,  and  there  is  a  slight  crack  from  the  rim  toward 
the  center.  The  minor  coins  of  the  United  States  are  provided 
for  by  section  3515,  Revised  Statutes  of  the  United  States  (U.  S. 
Comp.  St.  1901,  p.  2349),  in  which  the  alloy  and  weight  are 
prescribed.  Section  3587,  Revised  Statutes  of  the  United  States 
(U.  S.  Comp.  St.  1901,  p.  2401),  provides  that  the  minor  coins 
shall  be  legal  tender,  at  their  nominal  value,  for  any  amount,  not 
exceedlhg^So  cents,  m  any  one  payment. 

[Tj  It  is  not  doubtedthat  a  railway  company  may  expel  from 
its  cars  persons  who  refuse  to  pay  the  legal  fare.  Necessarily  that 
inherent  power  is  vested  in  the  conductor  employed  by  the  com- 
pany and  placed  by  it  in  charge  of  the  train  or  car.  But,  if  the 
company  wrongfully  expels  one  who  is  entitled  to  the  rights  of  a 
passenger,  it  is  liable  in  damages  to  such  person,  and  this  is  so, 
even  if  such  expulsion  is  done  through  an  error  of  judgment  on 
the  part  of  the  conductor  or  agent  in  charge. 

[2]  And  where  a  passenger  tenders  to  the  conductor  a  genuine 
coin  of  the  United  States,  not  so  worn,  defaced,  or  mutilated  but 
that  its  mint  marks  are  plainly  discernible,  and  not  appreciably^ 
diminished  in  weight,  and  such  tender  is  refused  and  the  passenger 
ejected  on  refusal  to  pay  in  other  money,  he  may  have  an  action 
of  damages  against  the  company.  And  this  is  so,  even  if  the  con- 
ductor in  good  faith  believed  the  coin  to  be  counterfeit  or  not  a 
sufficient  coin.  In  such  case  the  passenger  is  not  required  to  tender 
otlier  money,  if  the  first  coin  tendered  was  sufficient.  Chicago 
Union  Traction  Co.  v.  McClevey,  126  111.  App.  21;  Jersey  City 
&  Bergen  R.  Co.  v.  Morgan,  52  N.  J.  Law  60,  18  Atl.  904 ;  Mobile 
St.  Ry.  Co.  V.  Watters,  135  Ala.  227,  33  South.  42 ;  Atlanta  Con. 
St.  Ry.  Co.  V.  Keeny,  99  Ga.  2G6,  25  S.  E.  629,  33  L.  R.  A.  824. 

In  Jersey  City  &  Bergen  R.  Co.  v.  Morgan,  52  N.  J.  Law,  60, 
18  Atl.  904,  the  court  in  the  opinion  say:  "It  seems  by  these 
statutes  (U.  S.  Statutes)  that  so  long  as  a  genuine  silver  coin  is 
worn  only  by  natural  abrasion,  is  not  appreciably  diminished  in 
weight,  and  retains  the  appearance  of  a  coin  duly  issued  from  the 
mint,  it  is  a  legal  tender  for  its  original  value.  The  coin  in 
question  in  this  case  was  shown  to  the  court  and  jurj^,  but  does 
not  appear  in  the  evidence  to  have  been  so  w^orn  that  it  was  light 
in  weight,  or  not  distinguishable  a.s  a  genuine  dime.  If  no  limita- 
tion is  put  upon  its  circulation  by  the  government,  it  would  seem 
none  was  intended,  so  long  as  it  was  not  defaced,  cut,  or  mutilated, 
and    was    only    made    smooth    by    constant    and    long-continued 


148  Cases  on  Personal  Property 

handling,  and  b}^  being  circulated  as  a  part  of  the  national  cur- 
rency. ' ' 

The  question  as  to  what  treatment,  usage,  or  acts  amount  to 
mutilation  of  coins  was  before  the  court  in  United  States  v.  Lissner 
(C.  C.)  12  Fed.  840,  and  the  court  in  that  case  hold:  "Where  a 
coin  which  had  been  regularly  coined  at  the  mint  was  afterwards 
punched  and  mutilated  and  an  appreciable  amount  of  silver 
removed  from  it,  and  the  hole  plugged  up  with  base  metal,  or  any 
substance  other  than  silver,  it  is  an  act  of  counterfeiting;  but 
i^is  otherwise  where  the  hole  was  punched  with  a  sharp  instm- 
ment,  leaving  3II  the  silver  in  the  coin^  though  crowding_jt.Jiilo 
a  different  shape." 

Now  in  this  case,  as  in  the  five-cent  piece  or  nickel,  the  biniise 
and  the  crack  may  have  been  caused  by  a  blow  from  a  hammer  or 
other  heavy  instrument,  but  it  retains  all  of  its  material  and  all 
of  the  evidences  of  genuine  coinage,  though  the  material  is  very 
slightly  ' '  crowded  into  different  shape. ' '  There  is  not  such  mutila- 
tion, defacing,  punching,  or  cutting  as  to  deprive  it  of  its  legal 
tender  character  within  any  of  the  rules  laid  down  in  the  authori- 
ties or  the  statute.  The  law  does  not  require  that  minor  coins, 
tendered  in  payment  of  debt,  or  for  service  which  the  person 
making  the  tender  has  the  right  to  demand,  shall  be  absolutely 
perfect. 

[3]  It  is  contended  by  defendant  in  error  that,  so  long  as  a  coin 
is  in  such  condition  that  it  would  be  redeemed  by  the  United  States 
government,  it  does  not  lose  its  legal  tender  character.  The  trial 
court  appears  to  have  adopted  this  as  a  reasonable  test  by  which 
to  determine  the  question.  The  United  States  statutes  provide  that 
the  Treasury  Department  may  prescribe  rules  by  which  coin  and 
paper  money  which  may  become  unfit  for  circulation  may  be 
redeemed  or  exchanged,  and  such  rules  have  been  so  prescribed. 
One  of  the  pro\asions  is  that  ^"pieces  that  are  stamped,  bent  or 
twisted  out  of  shape  or  otherwise  imperfect,  but  showing  no  ma- 
terial loss  of  metal  will  be  redeemed. ' '  / 

"We  do  not  think  that  the  existence  of  this  rule,  even  though 
adopted  under  sanction  of  the~statute~wouId  justify  the  tender 
oF^a  coin  which  *'had  become__unfit^  for  circulation^ "  and  thus 
impose~on'tire  payee  the  burden  of  applying  to  the  Treasury  De- 
partment for  a  coin  fit  for  circulation,  nor  to  impose  on  him  the 
risk  of  failing  to  obtain  it.  This  view,  in  a  case  where  a  piece 
had  been  torn  from  a  one-dollar  bill,  was  adopted  by  the  court  in 
North  Hudson  Ry.  Co.  v.  Anderson,  61  N.  J.  Law  248,  39  Atl. 


Choses  IX  Possession"  149 

905,  40  L.  R.  A.  410,  68  Am.  St.  Rep.  703.  In  this  case  we  think 
the  evidence  shows  the  coin  was  not  so  affected  in  any  manner 
as  to  be_deprived  of  its  legal  tendf^r  ohamoter,  and  therefore  the 
court  did  not  err  in  its  ohara^e  t^ojhe  jurv^  in  that  regard. 

We  find^  error  i-n  the  record,  and  the  judgments  of  the  courts 
below  will  be  affirmed. 

Judgment  affirmed. 

Spear,  C.  J.,  and  Da\ts,  Siiauck,  Brice,  and  Donahue,  JJ., 
concur.^ 


Rights  in  Stolen  Moistey. 
MERCHANTS'  LOAN  &  TRUST  CO.  v.  LAMSON  et  al. 
90  III.  App.  118.    1889. 
The  facts  are  stated  in  the  opinion. 

Sears,  J. — This  suit  was  brought  in  assumpsit  by  appellant,  a 
banking  corporation,  to  recover  money  alleged  to  have  been  wrong- 
fully taken  from  appellant  by  one  of  its  receiving  tellers,  and 
paid  by  him  to  appellees  for  losses  in  speculative  deals  and  trades 
in  grain,  stocks,  provisions,  etc.,  made  through  appellees  as  brokers 
upon  the  New  York  Stock  Exchange  and  on  the  Board  of  Trade 
of  the  city  of  Chicago. 

One  Ross  C.  Van  Bokklen  was  teller  of  appellant.  In  1892, 
having  received  from  the  estate  of  his  father  some  $2,000,  he 
began  trading  through  appellees'  firm,  who  were  commission  men 
or  brokers',  doing  business  on  the  Chicago  Board  of  Trade  and  the 
New  York  Stock  Exchange.  He  was  well  acquainted  with  one 
E.  R.  Shaw,  an  employee  of  appellees,  and  Shaw  was  aware  of  the 
position  held  by  Van  Bokklen  in  the  appellant  bank.  Van  Bokklen 
took  from  the  moneys  of  appellant  large  sums,  amounting,  as  it  is 
claimed,  to  $10,000,  and  lost  the  same  in  deals  in  gi'ain,  stocks 
and  provisions  made  through  appellees  as  his  brokers. 

The  theory  upon  which  appellant  sought  to  recover  from  ap- 
pellees thesie  moneys,  thus  embezzled  by  its  employee,  is,  that 
appellees  were  in  possession  of  knowledge  of  facts  which  should 
have  put  them  upon  inquiry  which  would  have  led  to  knowledge 
of  the  source  from  which  Van  Bokklen  obtained  the  money  thus 

»  See  Childs '  Personal  Property,  §  50. 


150  Cases  on  Personal  Property 

paid  by  him  to  appellees  as  his  agents  and  brokers,  *  *  *  Upon 
plea  of  general  issue  the  cause  was  tried  with  a  jury  and  resulted 
in  a  verdict  and  judgment  thereon  for  appellees.     *     *     * 

"While  it  is  true  that  appellees,  through  their  employee,  Shaw, 
were  aware  that  Van  Bokklen  was  a  teller  in  the  appellant  bank, 
yet  there  is  no  evidence  in  this  record  which  establishes  that 
appellee  had  any  actual  notice  or  knowledge  of  the  fact  that  Van 
Bokklen  was  stealing  from  appellant  the  monej^s  which  he  was 
investing  through  appellees.  The  rule  of  law  which  applies  in 
this  state,  and  which  controls  upon  the  facts  here  presented,  is 
that  even  if  money  transferred  to  an  honest  taker  was  obtained 
by  the  one  transferring  it  through  a  felony,  yet  the  honest  taker^ 
who  received  it  without  knowledge  of  the^felqnyand  in  due_course 
of  business,  would  acquire  good  title  as  against  the  one  from  whom 
TTliad  been  stolen.~  Jones  v.  Nellis,  41  111.  482 ;  Comstock  v.  Han- 
nah, 76  111.  530 ;  Shreeves  v.  Allen,  79  111.  533 ;  ]\Iurray  v.  Beckwith, 
81  111.  43 ;  Matson  v.  Alley,  141  111.  284 ;  Bemis  v.  Homer,  165  111. 
347 ;  Hopkins  v.  Withrow,  42  111.  App.  584 ;  Webber  v.  Ind.  Nat. 
Bank,  49  111.  App.  336 ;  Gray  v.  Goode,  72  111.  App.  504 ;  Kent  v. 
Barnes,  72  Ind.  617. 

In  most  of  the  cases  above  cited,  the  rule  is  applied  to  com 
mercial  paper,  but  the  same  rule  applies  with  even  greater  force 
to  currency.  Indeed,  the  rule  as  applied  to  negotiable  ppper  is 
derived  from  and  based  upon  the  English  rule  as  originally  applied 
to  coin  or  other  forms  of  currency.  The  exception  to  the  general 
rule  of  the  common  law  that  the  purchaser  of  a  chattel  can  acquire 
no  better  title  than  the  vendor,  was  first  applied  to  money,  i.  e., 
currency,  and  then  extended  in  its  application  to  negotiable  paper. 
Anonymous,  1  Salk.  126 ;  Miller  v.  Race.  1  Burr.  452 ;  Lawson  v. 
W^eston,  4  Esp.  56. 

In  Miller  v.  Race,  supra,  Lord  ]\Iansfield  said :  '' The  true  reason 
is  upon  account  of  the  cjirrency;^of  it ;  it  can  not  be  recovered  after 
it  has  passed^in  currency." 

The  rule  which  in  Miller  v.  Race,  supra,  was  applied  to  a  bank 
note,  was  extended  in  Lawson  v.  W^eston,  supra,  to  apply  as  well 
to  a  bill  of  exchange. 

In  Jones  v.  Nellis,  supra,  the  Supreme  Court  of  this  state,  at 
an  early  day,  applied  the  same  rule  by  like  reasoning  to  negotiable 
paper,  a  doctrine  consistently  maintained  down  to  the  most  recent 
decision  in  Bemis  v.  Homer,  165  111.  347. 

Under  a  practical  application  of  this  rule,  mere_grmind_  af  sus- 
picion of  defect  of  title,   or  knowledge  of  circumstances  which 


Choses  in  Possession  151 

would  excite  such  suspicion  m  the  mind  of  a  prudent  man,  or  gross 
negligence  on  the  part  of  the  taker,  will  not  defeat  title.  Bad 
'faith  alone  will  defeat_the  riglit  of  t_he  Jtaker  without  knowledge. 
The  test  is  honesty  and  good  faith — not  diligence.  Comstock  v. 
Hannah,  supra. 

Measured  h^  these  rules,  it  is  clear  that  the  verdict,  finding  the 
issues  for  appellees,  is  sustained  by  the  facts  of  the  case  here  pre- 
sented. Appellees  are  not  shown  Jtoh^ve  had  knowledge  of  the 
theft  by  which  the  moneys  in  question  were  obtained.  At  most 
it  can  only  be  said  that  there  were  grounds  of  suspicion,  or  that 
they  were  guilty  of  some  degree  of  negligence.  No  bad  faith  upon 
the  part  of  appellees  can  be  predicated  upon  these  facts.  They 
took  the  money  in  the  due  course  of  business,  and  it  had  no  ear- 
marks.    The  judgment  is  affirmed.^*' 

10  See  Childs '  Personal  Property,  §  51. 


CHAPTER  IV. 
CHOSES  IN  ACTION. 

Nature  of 

CITY  OF  CINCINNATI  v.  HAFER. 

49  Ohio  St.  60,  30  N.  E.  197.     1892. 

The  facts  are  stated  in  the  opinion, 

DiCKMAN,  J. — This  proceeding  in  error  is  instituted  to  reverse 
a  judgment  rendered  by  the  circuit  court  of  Hamilton  county 
against  the  city  of  Cincinnati,  on  an  appeal  by  the  city  from  a' 
judgment  in  the  court  of  common  pleas  in  favor  of  George  Hafer, 
defendant  in  error,  and  by  him  recovered  in  a  suit  in  the  nature 
of  a  creditors'  bill.  There  was  a  finding  of  facts  by  the  circuit 
court,  from  which  the  following  are  shown  to  have  existed :  On 
the  31st  day  of  May,  1880,  George  Hafer,  on  cross-petition  in  the 
case  of  Charles  S.  Woodruff  v.  H.  B.  Teetor  et  al.,  recovered  a 
judgment,  by  the  consideration  of  the  court  of  common  pleas, 
against  Sarah  L.  C.  Teetor,  wife  of  H.  B.  Teetor,  for  the  sum  oi 
$301.01,  wdth  interest  at  8  per  cent  per  annum  from  May  10,  1880, 
upon  which  judgment  no  execution  was  ever  issued.  At  the  time 
of  the  recovery  of  this  judgment,  a  suit,  begun  in  the  year  1879, 
was  pending  in  the  court  of  common  pleas,  in  which  Mrs.  Teetor, 
as  plaintiff,  claimed  damages  from  the  city  of  Cincinnati,  as 
compensation  for  a  loss  sustained  by  her  in  consequence  of  the 
drainage  of  sewage  from  the  city  infirmary  upon  her  land.  On  the 
20th  day  of  November,  1880,  Mrs.  Teetor  having  no  personal  or 
real  property  subject  to  levy  on  execution  sufficient  to  satisfy 
Hafer 's  judgment,  Hafer  commenced  this  suit,  in  the  nature  of  a 
creditors  ^  bill,  in  the  com-t_qf  common  pleas,  against  Mrs^  Teetor 
and  the  city  of  Cincinnati^in^rder  to  subject  to jthe  payment  of 
his  judgment  so  much  as  would  be  sufficient  out  of  the  indebtedness 
of  the  citylolEeFBy  reason  oT  the  loss  by  her  sustained  from  drain-^ 

152 


C HOSES  IN  Action  153 

age  iip^onJieriand^_as_aWve_aial^^     Soon  after  the  commencement 
of  this  suit,  a  general  demurrer  to  the  petition  in  Mrs.  Teetor's 
action  against  the  city  was  sustained  by  the  court,  and  leave  was 
given  to  her  to  file  an  amended  petition  therein.    It  was  not  done 
within  the  time  fixed  by  the  court,  and  not  until  June,  1884,  when, 
by  leave  of  the  court,  an  amended  petition  was  filed,  which  set  out 
the  original  cause  of  action,  though  in  a  different  manner  from  the 
original  petition.     Mrs.  Teetor  thereupon,  to-wit,  in  June,  1884, 
assigned  to  A.  S.  Miller  and  Sarah  Cilley  her  claim  against  the  city, 
then  in  litigation.    The  city  failed  to  answer  the  amended  petition 
of  Mrs.  Teetor,  and,  on  the  trial  of  the  issue  thus  made  she  recov- 
ered, in  October,  1886,  on  her  original  cause  of  action,  a  judgment 
against  the  city  for  $1,102 ;  and,  shortly  after  the  recovery  of  such 
judgment,  the  city  solicitor  then  in  office  paid  the  full  amount 
thereof  to  her  assignees,  without  any  knowledge  of  the  pendency 
of  Hafer's  suit  againstThTcity, — the  recoTds  and  tKe~c[oc¥ets  sTTow- 
ing  the  same  having  been  burned  with  the  Hamilton  county  court- 
house in  March,  1884.    In  Hafer's  suit  against  the  city  of  Cincin- 
nati, the  city,  in  December,  1880,  filed  an  answer  which  was  a 
general  denial,  but  nothing  further  was  done  in  the  suit  until  after 
the  burning  of  the  court-house,  in  which  all  the  papers  in  the  cause 
were  destroyed,  when,  in  March,  1887,  the  counsel  for  Hafer,  hear- 
ing for  the  first  time  of  the  judgment  against  the  city  in  favor  ol 
Mrs.  Teetor,  obtained  leave  and  filed  a  copy  of  Hafer's  original 
petition;  and  the  city  filed  an  answer  thereto,  to  which  answer 
there  was  a  reply,  and  the  court  of  common  pleas,  in  July,  1887, 
upon  the  pleadings  and  the  evidence,  gave  judgment  against  the 
city.     On  appeal  by  the  city,  the  circuit  court  found  that  Hafer\ 
was  entitled  to  a  decree  against  the  city  for  a  balance  due  to  him  / 
from  Mrs.  Teetor  on  his  judgment  against  her,  viz.,  for  the  sum  of/ 
$449.15,  with  interest  at  8  per  cent,  per  annum,  and  the  costs  in  I 
the  action,  and  rendered  judgment  against  the  city  accordingly.    / 
The  main  question  arising  on  the  record  is  whether  Mrs.  Teetor's 
demand  against  the  city  for  unliquidated  damages  was  of  such  a 
nature  that,  before  it  was  reduced  to  judgment,  Hafer,  a  judgment 
creditor,  could,  by  suit  in  the  nature  of  a  creditors'  bill  against 
her  and  the  city  of  Cincinnati,  acquire  a  lien  in  equity  on  her  inter- 
est in  such  demand,  and  become  entitled  to  payment  of  the  same, 
in  the  event  of  succeeding  in  his  suit.     It  is  contended  that  the 
demand    of__.  Mrs. „,  TecJoT ^ agalnsi    the    city    was    for    damages 
unliquidated    growing  _ouL_oi^^tQrt^  and  .  was_jnot,  _.theref ore, 
until   reduced   to^  judgement,   such   an   interest    as   nught,  under 


154  Cases  on  Personal  Property 

the  statute,  be^subjected  by  the_judgnient  creditor  to  the  pay- 
ment of  his  judgment.  It  is  provided  by  section  5464  of  the 
"Revised  Statutes  that,  "when  a  judgment  debtor  has  not  personal 
or  real  property  subject  to  levy  on  execution  sufficient  to  satisfy 
the~Ju3^6nt  *  *  *  any  interest  he  has  in  *  *  *  any 
money  contract,  claim,  or  chose  in  action,  due  or  to  become  due_to 
him,  or  in  any  judgment  or  order,  or  any  money,  goods,  or  effects 
which  he  hasTn  the  possession  of  any  person,  or  body  politie^r 
corporate,  shall  be  subject  to  the  payment  of  the  judgment,  by 
"action."  Mrs.  Teetor's  demand  for  damages,  on  account  of  injury 
to  her  land,  did  not,  it  is  true,  rest  on  a  money  contract,  but  it  was 
nevertheless  a  chose  in  action.  While  by  a  "chose  in  action"  is 
ordinarily  understood  a  right  of  action  for  money  arising  under 
contract,  the  term  is  undoubtedly  of  much  broader  significance, 
and  includes  the  right  to  recover  pecuniary  damages  for  a  wrong 
inflicted  either  upon  the  person  or  property.  It  embraces  demands 
arising  out  of  a  tort,  as  well  as  causes  of  action  originating  in  the 
breach  of  a  contract.  As  said  by  Judge  Sharswood,  in  a  note  to  a 
passage  in  2  Bl.  Comm.  396 :  "There  is  a  very  large  class  of  choses 
in  action  which  arise  ex  delicto.  My  claim  for  compensation  for 
any  injury  done  to  my  person,  reputation,  or  property  is  as.  truly 
a  chose  in  action  as  where  it  is  grounded  on  a  breach  of  covenant 
or  contract."  A  thing  in  action,  too,  is  to  be  regarded  as  a  property 
right.  One  of  the  well-recognized  divisions  of  personal  property 
is  into  property  in  possession  and  property  or  choses  in  action.  "A 
leading  distinction,  in  respect  to  goods  and  chattels,  is  the  distribu- 
tion of  them  into  things  in  possession  and  things  in  action.  The 
latter  are  personal  rights  not  reduced  to  possession,  but  recoverable 
by  suit  at  law.  *  *  *  Damages  due  for  torts  are  included 
under  this  general  head  or  title  of  things  in  action.*'  2  Kent: 
Comm.  351.  By  section  4975  of  the  Revised  Statutes  it  is  provided 
that,  "in  addition  to  the  causes  of  action  which  survive  at  common 
law,  causes  of  action  *  *  *  for  an  injury  to  real  or  personal 
estate  *  *  *  shall  also  survive ;  and  the  action  may  be  brought 
notwithstanding  the  death  of  the  person  entitled  or  liable  to  the 
same."  And  it  was  held  in  Grant  v.  Ludlow,  8  Ohio  St.  1,  that  a 
chose  in  action  which  is  transmissible  to  an  executor  or  adminis- 
trator, under  our  law,  is  assignable  in  equity.  Mere^ersonal  torts 
die  with  the  party,  and  are  not  assignable ;  but  where  the  action 
in)rought  for  damage' to ~the~estate,  and  not  for  injury  to  the 
person,  personiI~feelings7  oi'  character^and  the  right  o_f  action  sur- 
vives  to  the  personal  representative,  it  may  be  assigned  so  as  to 


Choses  in  Action  155 

pass  an  interest  to  the  assignee.  Jordan  v.  Gillen,  44  N.  H.  424; 
Railway  Co.  v.  Goodbar,  88  Ind.  213;  Butler  v.  Railroad  Co.,  22 
Barb.  110 ;  Purple  v.  Railroad  Co.,  4  Duer,  74 ;  McKee  v.  Judd,  12 
N.  Y.  6G2  J  Lazai-d  v.  AYlieeler,  22  Cal.  139 ;  North  v.  Turner,  9  Serg. 
&  R.  244;  Cass  v.  Railroad  Co.,  1  E.  D.  Smith,  522;  Quin  v.  Moore, 
15  N.  Y.  435. 

Choses  in  action  arising  out  of  a  tort  or  injury  to  property  being 
transmissible  as  assets  to  the  executor  or  administrator,  and  assign- 
able by  the  owner,  it  may  well_be  inquired  why  the  interest  which 
the  owner  has  in  such  rights  of^  action  should  not  be  subjected  to 
the  payment  of  his  debts  at  the  suit  of  a  judgment  creditor,  as  well 
as  his  interest  in  any  other  chose  in  action.  In  Hudson  v.  Plets, 
11  Paige,  183,  Chancellor  Walworth  said :  ' '  The  right  to  an  action 
for  an  injui-y  to  the^roperty  of  the  judgment  debtor,  before  the 
filing  of  the  complainant's  bill,  whereby  the  property  to  which  the 
creditor_was  entitled  to  resort  for_the  payment  of  his  debt  js 
destroyed  or  diminished  in  value,  appears  to  be  such  a  thing  in 
action  asjnay  prqperlx  be_.rea£hed.land^applie(i  to  the  payment  of 
[the  complainant's  debt,  under  a  creditors'  bill."  A  debtor's  real 
and  personal  property,  including  pecuniary  demands  against  others 
for  injury  thereto,  whereby  such  property  is  diminished  in  value, 
justly  constitutes  a  fund  for  the  payment  of  his  debts;  and  if  the 
tangible  property  is  taken  by  one  creditor  in  satisfaction  of  his 
claim,  another  creditor  may  rightly  acquire  an  equitable  lien  upon 
the  debtor's  interest  in  the  amount  which  should  be  paid  by  the 
wrong-doer,  who  has  diminished  the  value,  and  thereby  virtually 
taken  away  a  portion  of  the  tangible  property;  nor  should  the 
other  creditor's  r[ght  to  such  recourse  be  delayed  until  the  debtor, 
who  has  begun  his  action  for  unliquidated  damages,  has  first  reduced 
his  deman^~to"~judgment.  It  is  urged  that,  if  Mrs.  Teetor  had  not 
brought  an  action  against  the  city  for  damages,  the  defendant  in 
error  would  have  had  no  right  to  subject  any  portion  of  the 
indebtedness  of  the  city  to  her,  in  payment  of  his  judgment.  In 
the  present  case  the  facts  render  it  unnecessary  to  consider  whether, 
if  the  judgment  debtor  had  not  brought  suit  against  the  city  to 
enforce  her  rights,  the  judgment  creditor  might,  by  order  of  the 
court,  through  a  receiver,  have  enforced  the  rights  of  the  judgment 
debtor  for  his  (the  creditor's)  benefit.  The  statute  refers  to  "any 
interest  in  any  money  contract,  claim,  or  chose  in  action,  due  or  to 
become  due."  When  Hafer  began  the  present  suit  Mrs.  Teetor 's 
cause  of  action  existed,  and  she  had  already  commenced  her  action 
against  the  city;  and  when  her  demand  for  damages  y^as  reduced_ 


156  Cases  on  Personal,  Property 

to  .judgment  in  October,  1886,  his_creditors'  bill  was  still_pending 


m_the  same,  court.  When,  therefore,  judgment  was  rendered  in  his 
favor  in  July,  1887,  the  damages  claimed  by  Mrs.  Teetor  from  the 
city  had  been  liquidated,  and  "become  due;"  thus  indicating  that, 
when  Hafer  filed  his  creditors'  bill,  her  demand  against  the  city 
was  a  chose  in  action  that  was  "to  become  due"  or  payable,  or 
proper  to  be  paid. 

But  the  statute  not  only  subjects  the  judgment  debtor's  interest 
in  any  chose  in  action,  but  also  any  interest  he  has  in  "any  claim 
due  or  to  become  due."  The  term  "claim"  is  comprehensive,  and 
would  embrace  a  demand  for  money  in  varied  forms,  whether  on 
contract,  express  or  implied,  or  for  damages  growing  out  of  injury 
to  person  or  property.  "Damages"  have  been  defined  as  a  sum  of 
money  adjudged  to  be  paid  by  one  person  to  another  as  compensa- 
tion for  a  loss  sustained  by  the  latter  in  consequence  of  an  injury 
committed  by  the  former.  Co.  Lift.  257a;  Mayne,  Dam.  1.  If  the 
claim  for  unliquidated  damages  is  converted  into  a  judgment  while 
the  creditorsHjUns^ending,  it  may  beregarded  as  a  claim^jwhich, 
at  the  time  of  the" filing  of  thejredit^rs^biino  subject  it  m  equity, 
was^a^dHmT^^'become " due, "  within  Jh ejneamng  of  tlie^ gtgute; 
and  the  judgment_debtor's  interest  in  the  same  might  be  reached 
byTHsludgmenFcreditor.  *  *  *  Judgment  of  the  circuit  court 
affirmed.^ 


Assignability  of  Right  of  Action  for  Personal  Injury. 

If 
NORTH  CHICAGO  ST.  RY.  CO.  v.  ACKLEY. 

171  III.  100,  49  N.  E.  222,  44  L.  R.  A.  177.     1897. 

[This  is  a  bill  by  one  Lemuel  M.  Ackley  against  the  defendant 
street  railway  company  which  resulted  in  a  decree  for  the  com- 
plainant.   The  defendant  appeals. 

The  facts,  as  stated  by  Mr.  Justice  Craig  in  a  dissenting  opinion 
are,  in  substance,  as  follows :  That  the  complainant  was  an  attorney 
at  law;  that  Mary  Butler  had  received  certain  personal  injuries 
through  the  negligence  of  the  defendant  (the  appellant  here)  while 
alighting  from  a  cable  car;  that  Mary  Butler  had  a  cause  of  action 
against  the  railway  company,  and,  being  desirous  of  obtaining  the 
services  of  an   attorney  without  advancing  any  attorney's  fees 

1  See  Childs '  Personal  Property,  §  52. 


Choses  in  Action  157 

therefor,  entered  into  a  written  agreement  with  said  complainant 
whereby  he  was  to  undertake  the  prosecution  of  her  case  for  one- 
half  the  gross  amount  which  might  be  received  or  recovered  in 
judgment  against  the  railway  company.  To  secure  payment  of  said 
fee,  Mary  Butler  assigned  to  Ackley  one-half  of  said  right  of 
action.  Mary  Butler  further  agreed  not  to  compromise  or  settle 
said  claim,  or  to  have  any  dealings  with  any  person  in  reference 
thereto  other  than  said  attorney.  Ackley  commenced  suit  and  had 
the  same  set  for  trial ;  that  while  in  the  trial  docket,  the  railway 
company,  without  the  knowledge  or  consent  of  complainant,  settled 
the  cause  with  Mary  Butler,  procured  the  cause  to  be  called  up  and 
out  of  its  order,  and  had  a  judgment  entered  therein  in  favor  of 
"Mary  Butler  for  $3,750  and  costs,  which  sum  was  paid  to  Mary 
Butler,  and  she  satisfied  the  judgment  of  record.  It  is  further 
alleged  that  prior  to  making  said  settlement,  the  railway  company 
had  full  knowledge  and  notice  of  said  contract  in  "WTiting  of  the 
employment  of  Ackley  and  of  the  services  rendered  by  him.  The 
railway  company  and  Mary  Butler  each  refused  to  pay  the  com- 
plainant $1,875,  the  amount  due  him  for  his  services.  On  motion 
of  the  complainant,  a  decree  was  entered  in  his  favor  for  said 
amount,  together  with  costs  and  the  defendant  appealed.] 

Phillips,  C.  J. —  *  *  *  The  material  inquiry  therefore  is: 
First,  whether  a  right  of  action  for  personal  injuries  _ig_gssT£ngh1pj 
and,  second,  whether  a  contract  by  which  the  control  of  the  party 
in  interest  over  litigation  carried  on  in  his  name  or  in  his  behalf  is 
prevented  is  void.  By  the  common  law,  actions  arising  out  of  torts 
did  not  in  general  survive.  The  statute  of  this  state  has  materially 
changed  the  rule  with  reference  to  actions  which  survive ;  and  it  is 
now  the  general  rule  in  this  country  that  causes  of  action  arising 
from  torts  to  property,  real  or  personal,  or  injuries  to  the  decedent's 
estate^  by  which  its  value  is  diminished,  survive  and  go  to  the 
executor,  and  are^assets  in  his  hands,  aujLguch  causes  of  action  are 
assignable.  But  it  is  usually  held  that  torts  to  the  person  or  char- 
acter,  when  the  injury  or  damage  is  confined  to  the  body  or  feelings, 
or  which  produce  direct  injury  and  damage  both  mentally  and  to 
the  person,  are,  so  long  as  they  are  executory,  not  assignable.  The 
controversy  here  is  whether  an  action  for  personal  injuries  is 
assignable.    Appellee  contends  it  is. 

Numerous  authorities  are  referred  to  by  counsel  for  appellee, 
which  lay  down  the  rule  that,  in  many  cases  of  torts  to  property, 
causes  of  action  may  be  assigned,  and  of  those  cases  we  cite: 
*     *     *     Robinson  v.  Weeks,  6  How.  Prac.  161,  was  an  action  for 


158  Cases  on  Personal,  Property 

taking  and  converting  personal  property  brought  by  assignee, 
and  it  was  held  that  the  assignment  was  good.  Hall  v.  Railroad 
Co.  1  Disn.  58,  was  a  case  that  decided  that,  under  the  Ohio  Code, 
an  assignee  of  a  claim  for  damages  resulting  from  injuries  to  per- 
sonal or  real  estate  may  bring  an  action  in  his  own  name.  Moore 
V.  Massini,  32  Cal.  590,  was  a  case  where  it  was  held  that  a  claim 
for  damages  caused  by  a  trespass  on  land  is  assignable.  *  *  * 
Fried  v.  Railroad  Co.,  25  How.  Prac.  285,  holds  that  the  right  of 
action  for  carelessly  and  negligently  setting  fire  to,  and  burning 
up,  grass,  fences,  and  hay  upon  a  farm,  is  assignable.  Vimont  v. 
Railway  Co.,  64  Iowa,  513,  17  N.  W.  31,  and  21  N.  W.  9,  was  a 
case  in  which  there  was  an  assignment  of  the  right  of  action  for 
personal  injuries  to  a  resident  of  Iowa,  by  a  nonresident;  and  the 
question  arose  as  to  the  validity  of  the  assignment,  in  a  motion  to 
transfer  the  case  to  the  United  States  court ;  and  the  court  held 
such  assignment  was  good,  on  the  strength  of  Gray  v.  McCallister, 
50  Iowa,  497.  *  *  *  Brady  v.  "Whitney,  24  Mich.  154,  was  an 
action  in  trover,  brought  by  a  purchaser  of  a  melodeon  after  the 
conversion,  and  the  question  was  whether  this  sale  constituted  an 
assignment  of  the  right  to  sue.  The  court  held  that  a  right  of  action 
in  trover  is  assignable.  *  *  *  Final  v.  Backus,  118  Mich.  218, 
was  a  case  in  which  the  court  holds  that  a  right  of  action  for  con- 
version of  logs  is  assignable.  *  *  *  Stewart  v.  Railway  Co.,  62 
Tex.  246,  was  a  case  in  which  it  was  held  that  an  unliquidated 
claim  for  personal  injury  cannot  be  assigned  by  the  party  injured 
in  Texas.  The  court  approves  Railroad  Co.  v.  Freeman,  57  Tex. 
156,  and  holds,  as  there  was  no  survival,  there  could  be  no  assign- 
ment of  the  action  for  personal  injuries.  *  *  *  Chouteau  v. 
Boughton,  100  Mo.  406,  13  S.  W.  877.  The  question  involved  in 
this  case  was  whether  a  right  of  action  for  trespass  to  realty  was 
assignable,  and  the  court  held  that  it  was,  and  followed  the  case  of 
Snyder  v.  Railway  Co.,  86  Mo.  613.  This  latter  case  was  an  action 
brought  against  the  railroad  company  for  killing  a  hog,  which  had 
strayed  through  a  defective  fence;  and  it  was  held  that  such  a 
right  of  action  might  be  assigned,  as  it  would  survive  the  death  of 
the  owner  under  the  Code. 

All  these  cases — and  many  others  might  be  cited — sustain  the 
principle  that  causes  of  action  for  injuries  to  property,  real  or 
personal,  by  which  an  estate  is  diminished,  are  generally  assignable. 
On  grounds  of  public  policy,  the  sale  or  assignment  of  actions  for 
injuries  to  the  person  are  void.  The  law  will  not  consider  the 
injuries  of  a  citizen  whereby  he  is  injured  in  his  person  to  be.  as 


Choses  in  Action  159 

a  cause  of  action,  a  commodity  of  sale.  On  other  grounds,  assign- 
ability is  not  legal.  *  *  *  Pomeroy,  in  his  work  on  Equity 
Jurisprudence,  says  (section  1275)  :  "It  becomes  important,  then, 
in  fixing  the  scope  of  the  equity  jurisprudence,  to  determine  what 
things  in  action  may  thus  be  legally  assigned.  The  following 
criterion  is  universally  adopted:  All  things  in  action  which  sur- 
vive and  pass  to  the  personal  representatives  of  a  decedent  creditor 
as  assets,  or  continue  as  liabilities  against  the  representatives  of  a 
decedent  debtor,  are,  in  general,  thus  assignable.  All  which  do  not 
thus  survive,  but  which  die  with  the  person  of  the  creditor  or  of 
the  debtor,  are  not  assignable.  The  first  of  these  clauses,  according 
to  the  doctrine  prevailing  throughout  the  United  States,  includes 
all  claims  arising  from  contract,  express  or  implied,  with  certain 
well-defined  exceptions,  and  those  arising  from  torts  to  real  or  per- 
sonal property',  and  from  frauds,  deceits,  and  other  wrongs,  whereby 
an  estate,  real  or  personal,  is  injured,  diminished,  or  damaged.  The 
second  class  embraces  all  torts  to  the  person  or  character  where 
the  injury  and  damage  are  confined  to  the  body  and  the  feelings; 
and  also  those  contracts,  often  implied,  the  breach  of  which  pro- 
duces only  direct  injury  and  damage,  bodily  or  mental,  to  the  per- 
son, such  as  promises  to  marry,  injuries  done  by  the  want  of  skill 
of  a  medical  practitioner,  contrary  to  his  implied  undertaking, 
and  the  like ;  and  also  those  contracts,  so  long  as  they  are  executory, 
which  stipulate  solely  for  the  special  personal  services,  skill,  or 
knowledge  of  a  contracting  party."  Here  is  a  distinction  clearly 
drawn  between  injuries  to  property  and  injuries  to  the  person.  This 
distinction  rests  on  a  sound  principle.  If  a  person  receives  injuries 
to  his  person  through  any  negligence  of  another,  they  are  by  our 
statute  (section  123  of  chapter  3),  made  to  survive.  By  chapter  70, 
where  death  results  from  such  injuries  caused  by  such  negligence 
ofanotlier,  the  action  shall  survive,  but  is  brought  for  the  exclusiye_ 
benefit  of  the  ^vidow  and  the  next  kim  The  administrator  cannot 
recover  damages_for  the  estate,  and  at  the  same  time  recover  for 
the  exclusive  benefit  of  the  widow.  Statutes  like  chapter  70  are  in 
force  in  most  of  the  states.  May  a  person  injured  assign  the  cause 
of  action  immediately  after  his  injury,  and  then,  in  case  of  his 
death  from  that  injury,  legally  make  that  assignment  bar  a  recovery 
by  the  administrator  for  the  exclusive  benefit  of  the  widow  and  next 
of  kin?  The  purpose  of  chapter  70  was  not  for  the  benefit  of  a 
deceased  person,  but  for  that  of  the  widow  and  next  of  kin.  If 
an  assignment  on  the  basis  of  the  survival  of  the  action  was  the 
sole  test,  then,  in  the  case  mentioned,  the  assignment  would  be 


160  Cases  on  Personal  Property 

valid.  But  the  very  purpose  of  the  survival,  as  created  by  the 
statute,  is  for  the  benefit  of  the  widow  and  next  of  kin,  which  the 
law  would  not  permit  to  be  defeated.  Whether  the  action  be  for 
assault  and  battery  or  injuries  caused  by  the  negligence  of  another, 
still  the  same  rule  obtains  and  is  included  by  the  term  ' '  actions  for 
injuries  to  the  person;"  and,  as  a  possible  result  of  such  an  assign- 
ment, the  purpose  of  the  law  might  be  defeated.  Courts  have, 
without  any  exception,  steadily  held  that  an  action  for  injuries 
to  the  body  was  not  assignable.  These  actions  did  not  survive  at 
common  law,  and  statutes  providing  for  such  survival  have  had 
their  birth  since  the  passage  of  Lord  Campbell 's  act,  in  1846,  which, 
by  chapter  70  of  our  Revised  Statutes,  is  substantially  adopted. 
If  such  actions  are  held  assignable,  on  the  sole  ground  of  survival, 
then  an  assignee  in  bankruptcy  or  for  the  benefit  of  creditors  would 
take  the  cause  of  action. 

This  principle,  that  actions  for  personal  injuries  are  not  assign- 
able, is  w'ell  sustained  by  authority.  In  Rice  v.  Stone,  1  Allen  566, 
it  was  held  that  an  assignmentjof  a  claim  for  personal  injuries  is 
void,  although  made  after  verdict,  but  before  judgment,  in  an  action 
to  recover  damages  for  such  injury.  The  court  says:  "Such 
claims  were  not  assignable  at  common  law.  On  the  contrary,  a 
possibility,  right  of  entry,  thing  of  action,  cause  of  suit,  or  title  for 
condition  broken,  could  not  be  granted  or  assigned  over  at  common 
law.  *  *  *  But  this  ancient  doctrine  has  been  greatly  relaxed. 
Commercial  paper  was  first  made  assignable  to  meet  the  necessities 
of  commerce  and  trade.  Courts  of  equity  also  interfered  to  pro- 
tect assignments  of  various  choses  in  action;  and,  after  a  while, 
courts  of  law  recognized  the  validity  of  such  assignments,  and  pro- 
tected them,  by  allowing  the  assignee  to  use  the  name  of  the  assignor 
for  enforcing  the  claim  assigned.  And,  at  the  present  day,  claims 
for  property  and  for  torts  done  to  property  are  generally  to  be 
regarded  as  assignable,  especially  in  bankruptcy  and  insolvency. 
There  may  be  exceptions  to  this  doctrine,  but  they  need  not  be 
discussed  here.  But,  in  respect  to  all  claims  for  personal  injuries, 
the  questions  put  by  Lord  Abinger  in  Howard  v.  Crowther,  8  Mees. 
&  W.  603,  are  applicable:  *  *  *  'Has  any  court  of  law  or 
equity  ever  sanctioned  a  claim  by  an  assignee  to  compensation  for 
wounded  feelings,  injured  reputation,  or  bodily  pain,  suffered  by 
an  assignor?'  *  *  *  in  Prosser  v.  Edmonds,  1  Younge  &  C. 
Exeh.  481,  it  was  said  that  a  bare  right  to  file  a  bill  in  equity  for 
fraud  was  not  assignable.  Lord  Chief  Baron  Lyndhurst  remarked 
that  courts  of  equity  had  relaxed  the  ancient  rule  as  to  the  assign- 


Choses  in  Action  161 

ment  of  choses  in  action,  'but  only  in  the  case  where  something 
more  than  a  mere  right  to  litigate  has  been  assigned.'  This  con- 
stitutes a  very  important  limitation."  This  case  was  followed  in 
Linton  v.  Hurley,  104  Mass.  353 ;  in  Coughlin  v.  Railroad  Co.,  71 
N.  Y.  446,  where  one  having  a  claim  against  a  railroad  company 
for  personal  injuries  accepted  an  offer  from  certain  attorneys  to 
take  the  claim  for  collection,  and  divided  the  recovery.  After- 
wards the  railroad  company,  with  notice  of  the  attorneys'  interest 
in  the  cause  of  action,  settled  with  the  claimant,  and  secured  a 
release.  In  holding  that  the  release  was  a  bar  to  the  action  for 
negligence,  and  that  the  attorneys  could  not  demand  that  the  action 
proceed  so  that  they  might  have  the  benefit  of  their  agreement 
(which  we  shall  notice  hereafter),  the  court  say,  citing  the  preced- 
ing cases:  *'So,  if  the  cause  of  action  before  judgment  be  in  its 
nature  assignable,  the  owner  of  it  may  assign,  and,  by  agreement, 
create,  legal  and  equitable  interests  therein;  and  such  agreements 
may  now  be  made  with  his  attorneys,  as  well  as  with  other  per- 
sons ;  and  when  such  interests  have  been  created,  and  notice  given 
of  them,  they  must  be  respected.  But  *  *  *  when  the  cause 
of  action  is  like  this,  such  as  by  its  nature  is  not  assignable,  thfe 
party  owning  it  cannot,  by  any  agreement,  give  his  attorn£y_or 
other  person  any  interest  therein," — citing  People  v.  Tioga  Com- 
mon Pleas,  19  Wend.  73,  and  Pulver  v.  Harris,  62  Barb,  500,  52 
N.  Y.  73.  *  *  *  The  only  exception  to  this  rule  is  the  case  of 
Vimont  v.  Railroad  Co.,  69  Iowa,  296,  22  N.  W.  906,  and  28  N.  W. 
612,  which  has  been  followed  by  other  cases  in  that  state.  We  do 
not  think  the  reasoning  on  which  these  decisions  are  based  is  sound, 
and  we  decline  to  follow  them. 

The  second  proposition  to  be  determined  is:  Is  a  contract  by 
which  the  person  in  whose  name  the  action  is  brought,  and  to  whom 
it  belongs,  restricted  from  compromising  or  settling  such  claim 
because  of  a  contract  to  that  effect  ?  In  other  words,  is  such  a  con- 
tract valid  and  binding  ?  The  law  does  not  discourage  settlements 
in  eases  for  personal  injuries.  When  a  cause  of  action  exists,  its 
nature  and  amount  are  always  involved  in  uncertainty,  and  a 
defendant  has  a  right  to  buy  his  peace.  The  plaintiff  has  a  right 
to  compromise  and  avoid  this  anxiety,  resulting  from  a  cause  pend- 
ing to  which  he  is  a  party.  Any  contract  whereby  a  client  is  pre- 
vented  from  settling  or  discontinuing^his  suit  is  void,  as  such  agree- 
ment wouTd^?oster  and  encouragejitigajtion.  Lewis  v.  Lewis,  15 
Ohio,  715.  *  *  •  The  decree  of  the  superior  court  of  Cook 
county,  and  the  judgment  /)f  the  appellate  court  of  the  First  Dis- 
C.P.P.— n 


162  Cases  on  Personal  Property 

trict,  are  each  reversed,  and  the  cause  is  remanded,  with  directions 
to  dismiss  the  bill.    Reversed  and  remanded,  with  directions.^ 
Magruder,  J.  and  Craig,  J.,  dissent. 

2  In  many  states,  perhaps  the  majority,  a  right  of  action  for  personal  injury 
is  assignable  by  statute.  Such  a  right  is  assignable  in  Michigan.  Grand  Rapids 
&  I.  R.  R.  Co.  V.  Cheboygan  Circuit  Judge,  161  Mich.  181,  126  N.  W.  56,  137 
Am.  St.  Rep.  495.  As  to  what  actions^  for  personal  tort  survive  and  are  assign- 
q^ble,  consult  the  statutesjof  your  own  state. 

A  cofporatioiTcanhot  bring^  an  action  ex  delicto  for  a  purely  personal  tort, 
nor  can  it  be  awarded  purely  personal  damages.  Hanson  Mercantile  Co.  v. 
Wvman,  Partridge  Co.  et  al.,  105  Minn.  491,  117  N.  W.  926,  21  L.  R.  A.  (N.  S.) 
727. 

A  married  woman  may  not  'bring  an  action  in  her  own  name  for  a  purely 
personal  tort.  Gibson  v.'  Gibson,  4.3  Wis.  23,  28  Am.  Rep.  527.  (Changed  by 
statute.) 

Contra:     Berger  v.  Jacobs,  21  Mich.  215. 

See  Childs'  Personal  Property,  §53. 


CHAPTER  V. 

PATENTS,  COPYRIGHT,  GOODWILL,  TRADEMARKS,  AND 

TRADENAMES. 


7 


Patents. 

Requisites. 

(a)  Novelty. 

ANSONIA  BRASS  &  COPPER  CO.  v.  ELECTRICAL 
SUPPLY  CO. 

144  U.  S.  11,  12  Sup.  Ct.  Rep.  601.     1892. 

The  facts  are  stated  in  the  opinion. 

Statement  by  Mr.  Justice  Brown. 

This  was  a  bill  in  equity  for  the  infringement  of  letters  patent 
No.  272,660,  issued  February  20,  1883,  to  Alfred  A.  Cowles,  for 
an  ''insulated  electric  conductor." 

In  his  specification  the  patentee  stated  that,  "before  my  inven- 
tion, copper  wires  had  been  covered  with  one  or  two  braidings  of 
cord;  and  paraflfine,  tar,  asphalt,  and  various  substances  had  been 
employed  for  rendering  the  covering  water-proof  and  furnishing 
a  proper  insulation.  With  conductors  of  this  character  several 
accidents  occurred  in  consequence  of  the  conductor  becoming  heated 
and  setting  fire  to  the  insulation.  For  this  reason  objections  were 
made  to  insuring  buildings  against  loss  by  fire  where  electric  lamp 
wires  were  introduced.  To  render  the  conductor  fireproof  with- 
out interfering  with  the  insulation  led  me  to  invent  and  manu- 
facture the  insulated  electric  conductors  to  which  the  present  inven- 
tion relates,  which  conductors  have  gone  extensively  into  use  dur- 
ing about  a  year  and  a  half  before  the  date  of  this  specification. ' ' 

Upon  a  hearing  upon  pleadings  and  proofs  in  the  circuit  court 
plaintiff's  bill  was  dismissed,  (32  Fed.  Rep.  81,  and  35  Fed.  Rep. 
68),  and  an  appeal  taken  to  this  court. 

363 


164  Cases  on  Personal  Property 

Mr.  Justice  Brown,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

The  stress  of  this  case  is  upon  the  questions  of  patentable  novelty. 
The  art  of  insulating  electric  wires  has  been  known  almost  as 
long  as  that  of  conducting  electricity  for  practical  purposes  by 
means  of  wires.  Prior  to  the  use  of  electricity  for  lighting,  how- 
ever, the  feeble  character  of  the  currents  conveyed  upon  these  wires 
did  not  require  that  the  insulating  material  should  be  noncom- 
bustible,  and  the  skill  of  the  inventor  was  directed  towards  a  method 
of  insulation  which  should  protect  the  wire  from  moisture  and 
other  external  injury.  For  this  purpose  the  wires  were  covered 
with  braid  which  had  been  saturated  or  covered  with  tar,  parafSne, 
India  rubber,  gutta-percha,  asphaltum,  and  various  substances  of 
like  nature,  to  exclude  the  action  of  the  water,  and  afford  a  proper 
insulation. 

Upon  the  introduction  of  electric  lighting  it  was  found  that  this 
method  of  insulation,  while  efficient  to  protect  the  wire  from  exter- 
nal influences,  was  unable  to  withstand  the  intense  heat  frequently 
generated  in  the  wire  itself  by  the  powerful  currents  of  electricity 
necessary  for  illuminating  purposes.  At  first  these  wires  were 
covered  with  cotton,  which  had  been  saturated  in  paraffine  and 
other  similar  substances.  The  result  was  that  the  insulating  mate- 
rial was  melted,  or  set  on  fire,  and  dropped  off  the  wire  while  still 
burning,  and  became  so  frequently  the  cause  of  conflagrations  that 
the  insurance  companies  declined  to  issue  policies  upon  buildings 
in  which  this  method  of  insulating  wires  was  employed.  A  new 
substance  was  needed,  which  would  not  only  operate  as  a  non- 
conductor of  electricity,  and  as  a  protection  against  moisture,  but 
which  should  also  be  non-combustible. 

This  material  was  discovered  in  ordinary  paint.  Mr.  Cowles  was 
not  the  first,  however,  to  discover  that  paint  was  useful  for  the 
purpose  of  insulating  electric  wires.  In  several  English  patents 
put  in  evidence  paint  is  suggested  as  a  proper  covering  for  pro- 
tective as  well  as  for  insulating  purposes,  in  lieu  of  gutta-percha, 
India  rubber,  resin,  pitch,  or  other  similar  substances;  but,  as  a 
non^combustible  insulator  was  never  required  for  telegraphing  pur- 
poses, there  is  no  intimation  in  any  of  them  that  it  possessed  this 
quality.  It  had,  however,  been  a  matter  of  common  knowledge  for 
many  years  that  paint  was  practically  non-combustible.  While 
the  linseed  oil  in  paint  is  to  a  certain  extent  combustible,  the  car- 
bonate of  lead  is  a  material  both  non-combustible  and  a  non- 
conductor. 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       165 

It  is  clear  that  none  of  these  English  patents  can  be  claimed  as 
anticipations,  since  they  all  relate  to  the  protection  of  land  or  sub- 
marine telegraph  cables  and  the  use  of  paint,  so  far  as  it  was  used 
at  all,  was  simply  as  a  water-proof  covering  for  a  braided  wire. 
There  is  nothing  to  indicate  that  the  paint,  as  used  by  them,  was 
applied  in  the  manner  indicated  by  the  patent,  or  that  it  made  the 
covering  non-combustible,  or  was  intended  at  all  for  that  purpose. 

The  most  satisfactory  evidence  of  the  use  of  a  non-combustible 
covering  for  electric  wires  is  found  in  the  testimony  of  Edwin 
Holmes,  manufacturer  of  an  electric  burglar  alarm,  who  states 
that  when  he  first  commenced  using  electric  conductors  "the  wire 
was  insulated  by  winding  a  thread,  larger  or  smaller,  as  the  case 
might  be,  around  the  wire,  and  that  thread  was  covered  with 
paint,"  and  that  all  his  wires  were  "insulated  in  that  way  until 
paraffine  was  substituted  for  the  paint."  The  paint  was  applied 
by  drawing  the  wire  through  a  vessel  containing  the  paint,  and 
then  through  a  piece  of  thick  rubber  or  gutta-percha,  which 
removed  the  surplus  paint  and  left  a  smooth  surface  on  the  thread 
which  covered  the  wire.  He  began  to  cover  his  wires  in  this  way  as 
early  as  1860,  and  says  that  he  accomplished  his  insulation  "some- 
times by  covering  the  wire  with  a  thicker  thread  and  two  coats  or 
more  of  paint ;  sometimes  by  a  thread  covering  and  a  coat  of  paint, 
then  another  thread  covering  and  a  coat  of  paint  on  that."     *     *     * 

Practically  the  only  difference  between  the  Holmes  and  Cowles 
insulators  is  in  the  fact  that  the  coat  of  paint  applied  to  the  first 
braid  in  the  Holmes  process  was  allowed  to  dry  before  the  second 
coat  of  braid  was  applied,  and  thereby  the  braid  was  not  so  thor- 
oughly permeated  with  the  paint  as  is  the  case  in  the  Cowles  patent. 
That  the  idea  of  applying  the  second  coat  of  braiding  upon  the 
interposed  insulating  material,  while  such  material  was  wet  or 
unset,  is  not  in  itself  a  novel  one,  is  evident  from  the  English 
patents  to  Brown  and  Williams,  to  Duncan  and  to  Henley,  all  of 
which  describe  a  method  for  insulating  conductors  by  applying  a 
layer  of  fibrous  material,  a  layer  of  insulating  material,  and  a 
second  layer  of  fibrous  material  upon  the  former,  before  the  insu- 
lating material  is  set  or  hardened.  *  *  *  But.  however  this 
may  be,  the  method  described  by  Cowles  differs  only  in  degree, 
and  not  in  kind,  from  that  described  by  Holmes.  In  other  words, 
it  is  a  more  thorough  doing  of  that  which  Holmes  had  already 
done,  and  therefore  involving  no  novelty  within  the  meaning  of 
the  patent  law.     *     *     * 

In  the  case  of  Candy  v.  Belting  Co.,  12  Sup.   Ct.  Rep.  598, 


166  Cases  on  Personal  Property 

(recently  decided),  the  patentee  found  that  the  canvas  thereto- 
fore manufactured  was  unfit  for  use  as  belting  by  reason  of  its 
tendency  to  stretch,  and  to  obviate  this  he  changed  the  constitution 
of  the  canvas  itself  by  making  the  warp  threads  heavier  and 
stronger  than  the  weft ;  in  short,  he  made  a  new  canvas,  constructed 
upon  new  principles,  and  accomplishing  a  wholly  new  result.  That 
case  is  not  a  precedent  for  this. 

It  is  true  that  the  insulator  used  by  Holmes  was  not  intended 
to  be,  and  perhaps  was  not  known  to  be,  incombustible,  since  this 
feature  of  its  incombustibility  added  nothing  to  its  value  for  pro- 
tecting a  burglar-alarm  wire,  which  carries  a  current  of  compara- 
tively low  tension ;  but,  as  already  observed,  the  testimony  indicates 
that  the  insulator  employed  by  him  was  in  fact  nearly,  if  not 
quite,  as  incombustible  as  that  made  by  the  plaintiff  under  the 
Cowles  patent.  If  this  be  so,  and  the  two  insulators  are  practically 
the  same  in  their  method  of  construction,  it  is  clear  that  Cowles 
has  no  right  to  claim  the  feature  of  incombustibility  as  his  inven- 
tion, since  nothing  is  better  settled  in  this  court  than  that  the 
application  of  an  old  process  to  a  new  and  analogous  purpose  does 
not  involve  invention,  even  if  the  new  result  had  not  before  been 
contemplated.  It  was  said  by  Chief  Justice  Waite  in  Roberts  v. 
Ryer,  91  U.  S.  150,  157,  that  "it  is  no  new  invention  to  use  an  old 
machine  for  a  new  purpose.  The  inventor  of  a  machine  is  entitled 
to  all  the  uses  to  which  it  can  be  put,  no  matter  whether  he  had 
conceived  the  idea  of  the  use  or  not." 

In  Pennsylvania  Railway  v.  Locomotive  Truck  Co.,  110  U.  S. 
490,  494,  the  adoption  of  a  truck  for  locomotives,  which  allowed 
a  lateral  motion,  was  held  not  to  be  patentable,  in  view  of  the  fact 
that  similar  trucks  had  been  used  for  passenger  cars.  All  the 
prior  cases  are  cited,  and  many  of  them  reviewed,  and  the  conclu- 
sion reached  that  "the  application  of  an  old  process  or  machine 
to  a  similar  or  analogous  subject,  with  no  change  in  the  manner 
of  application  and  no  result  substantially  distinct  in  its  nature, 
will  not  sustain  a  patent,  even  if  the  new  form  of  result  had  not 
before  been  contemplated."  The  principle  of  this  case  was  express- 
ly approved  and  adopted  in  that  of  Miller  v.  Force,  116  U.  S.  22, 
6  Sup.  Ct.  Rep.  204,  and  has  been  frequently  applied  in  the  admin- 
istration of  patent  law  by  the  circuit  courts.  Crandall  v.  AValters, 
20  Blatchf .  97,  9  Fed.  Rep.  659 ;  Ex  parte  Arkell,  15  Blatchf .  437 ; 
Blake  V.  San  Francisco,  113  U.  S.  679,  5  Sup.  Ct.  Rep.  692 ;  Smith 
V.  Elliott,  9  Blatchf.  400;  Western  Electric  Manuf'g  Co.  v.  Anso- 
nia  Brass  &  Copper  Co.,  114  U.  S.  447,  5  Sup.  Ct.  Rep.  941 ;  Spill 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.        167 

V.  Celluloid  Manuf'g  Co.,  22  Blatclif.  441,  21  Fed.  Rep.  631;  Sewall 
V.  Jones,  91  U.  S.  171. 

On  the  other  hand,  if  an  old  device  or  process  be  put  to  a  new 
use,  which  is  not  analogous  to  the  old  one,  and  the  adaptation  of 
such  process  to  the  new  use  is  of  such  character  as  to  require  the 
exercise  of  inventive  skill  to  produce  it,  such  new  use  will  not  be 
denied  the  merit  of  patentability.  That,  however,  is  not  the  case 
here,  since  the  Cowles  process  had  been  substantially  used  by 
Holmes  for  the  same  purpose  of  insulating  an  electric  wire,  and 
the  discovery  of  its  incombustible  feature  involved  nothing  that 
was  new  in  its  use  or  method  of  application. 

The  utmost  that  can  be  said  for  Cowles  is  that  he  produced  a 
somewhat  more  perfect  article  than  Holmes;  but,  as  was  said  by 
this  court  in  Smith  v.  Nichols,  21  AVall.  112,  119,  "a  mere  carrying 
forward,  or  new  or  more  extended  application  of  the  original 
thought,  a  change  only  in  form,  proportions,  or  degree,  the  substitu- 
tion of  equivalents,  doing  substantially  the  same  thing  in  the  same 
way  by  substantially  the  same  means,  with  better  results,  is  not 
such  invention  as  will  sustain  a  patent."  It  was  held  in  this  case 
that  where  a  textile  fabric,  having  a  certain  substantial  construc- 
tion, and  possessing  essential  properties,  had  been  long  known  and 
in  use,  a  patent  was  void  when  all  that  distinguished  the  new  fabric 
was  higher  finish,  greater  beauty  of  surface,  the  result  of  greater 
tightness  of  weaving,  and  due  to  the  observ^ation  or  skill  of  the 
workman,  or  to  the  perfection  of  the  machinery  employed.  See, 
also,  Morris  v.  McMillin,  112  U.  S.  244,  5  Sup.  Ct.  Rep.  218 ;  Bussell 
Trimmer  Co.  v.  Stevens,  137  U.  S.  423,  11  Sup.  Ct.  Rep.  150,  and 
cases  cited. 

The  decree  of  the  circuit  court  is  therefore  affirmed.^ 

Mr.  Justice  Field  dissented. 

% 


(b)  Must  Be  Useful. 

NATIONAL  AUTOMATIC  DEVICE  CO.  v.  LLOYD  ct  al. 

40  Fed.  89,  5  L.  R.  A.  784.     1889. 

The  facts  are  stated  in  the  opinion. 

Blodgett,  J. — Complainant  moves  for  an  injunction  pendente 
lite  in  this  case.    The  bill  charges  the  infringement  of  patent  No. 
iSee  Childs'  Personal  Property,  fi§  75,  77,  78. 


168  Cases  on  Personal  Propeety 

410,981,  granted  to  Fred  N.  Lang,  on  the  10th  day  of  September, 
1889,  for  a  "Toy  Automatic  Race-Course,"  and  contains  the  usual 
prayer  for  an  injunction  and  accounting.  The  device  covered  by 
the  patent  is  a  shaft  projecting  upwards  from  the  center  of  the 
base  of  a  circular  shell  or  case,  from  15  to  18  inches  in  diameter, 
to  which  shaft  a  clock-work  mechanism  is  so  geared  that  it  can 
be  made  to  revolve  rapidly  by  releasing  the  escapement  of  the 
clock-work.  On  this  shaft  are  mounted  two  or  more  radial  arms, 
to  the  ends  of  which  are  attached  small  toy  figures  of  horses.  These 
radial  arms  are  attached  to  the  shaft  by  separate  collars  so  loose 
that  they  turn  easily  on  the  shaft.  Tlie  clock-work  escapement  is 
released  by  dropping  a  nickel  coin  through  a  slot  in  the  machine, 
whereupon  the  shaft  commences  to  revolve  rapidly,  carrying  the 
radial  arms  with  it,  but,  after  a  certain  number  of  revolutions,  the 
force  of  the  clock-work  is  cut-off,  and  the  radial  arms  continue  to 
revolve,  from  the  tncmientum  they  have  obtained  while  the  clock- 
work was  going,  until  such  arms  finally  stop  from  friction  and 
the  resistance  of  the  air.  Several  objections  are  urged  against  the 
motion  for  an  injunction,  such  as  that  the  bill  is  multifarious,  non- 
infringement, etc.,  which  I  do  not  deem  it  necessary  to  consider, 
as  it  seems  to  me  there  is  sufficient  reason  on  another  ground  for 
withholding  the  injunction.  The  proof  shows  that  the  only  use  to 
which  complainant's,  or,  for  that  matter,  the  defendants',  machines, 
have  been  so  far  applied,  is  to  place  them  in  saloons,  bar-rooms, 
and  other  drinking  places,  where  the  frequenters  of  such  places 
make  wagers  as  to  which  of  the  toy  horses  will  stop  first,  or  which 
will  stop  nearest  to  a  designated  point,  after  the  machine  has  been 
put  in  motion,  by  dropping  a  nickel  in  the  slot ;  in  other  words,  the 
machine  in  question  is  only  used  for  gambling  purposes.  The  law 
of  the  United  States  only  authorizes  the  issue  of  a  patent  for  a  new 
and  useful  invention,  and  in  an  early  case  on  that  subject  (Bedford 
v.  Hunt,  1  Mason,  302)  it  was  held  that  the  word  "useful,"  as 
used  in  this  statute,  means  such  an  invention  as  may  be  applied  to 
some  beneficial  use  in  society,  in  contradistinction  to  an  invention 
which  is  injurious  to  the  morals,  health,  or  good  order  of  society, 
and  the  principle  thus  enunciated  has  been  uniformly  applied  ever 
since.  It  is  urged  that  this  machine  is  susceptible  of  being  utilized 
as  a  toy,  or  child's  plaything;  but  it  is  a  sufficient  answer  to  this 
suggestion  that  no  such  use  has  been  as  yet  made.  The  patent 
has  been  very  recently  issued,  and  it  is  possible  that  a  useful  appli- 
cation may  yet  be  found  for  it ;  but  as  the  case  now  stands,  the  only 
use  to  which  the  invention  had  been  put  being  for  gambling  pur- 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       169 

poses,  I  must  hold  that  it  is  not  a  useful  device,  within  the  meaning 
of  the  patent  law,  as  its  use  so  far  has  been  only  pernicious  and 
hurtful.    Injunction  refused.^ 


(c)  Physical  Things  Only. 


NATIONAL  METER  CO.  v.  NEPTUNE  METER  CO. 

122  Fed.  82.    1903. 
The  facts  are  stated  in  the  opinion, 

Archbald,  District  Judge. — If  the  case  turned  on  the  question 
of  infringement,  there  would  be  no  serious  difficulty  in  disposing 
of  it.  The  defendants  are  manufacturing  two  kinds  of  displace- 
ment or  nutating  meters,  each  of  which  offends  against  one  or  the 
other  of  the  patents  in  suit,  if  valid.  In  one  the  disk  of  the  piston, 
the  inclosing  case  of  the  meter  chamber,  and  the  seat  of  the  ball, 
above  as  well  as  below,  are  all  made  of  brass,  while  the  ball  itself 
is  of  rubber.  This  escapes  the  second  patent,  which  calls  for  the 
case,  ball,  and  disk  to  be  of  metal,  and  the  seat  of  the  ball  of  a  non- 
metallic  material;  but  it  comes  within  the  terms  of  the  first  and 
second  claims  of  the  first  patent,  which  in  a  general  way  may  be 
said  to  cover  the  combination  in  which  the  disk  and  opposing  case 
walls  are  made  of  similar  materials,  and  the  ball  and  ball  bearings 
of  those  that  are  dissimilar.  This  is  not  exact,  but  it  is  sufficient 
for  the  present  purpose.     *     *     * 

But  the  real  question  in  the  case  is  whether  the  patents  in  suit 
are  valid,  and  this  requires  a  somewhat  critical  examination  of 
them,  and  what  they  undertake  to  cover.  The  disk  of  a  nutating 
meter,  as  first  set  in  place,  is  given  a  slight  clearance  at  the  rim 
sufficient  to  avoid  contact  with  the  inclosing  case  without  resultant 
leakage.  But  when  the  piston  loses  it  initial  poise  by  reason  of  the 
wear  of  the  ball  in  its  socket,  as  there  is  a  natural  radial  thrust 
by  the  water  in  the  direction  of  the  outlet  port,  the  disk  is  liable 
to  be  forced  into  sudden  contact  at  that  point  with  the  walls  of  the 
case,  binding  and  breaking  it,  because  of  its  having  to  take,  on  the 
instant,  the  entire  weight  of  the  water  head.  This  is  a  well-recog- 
nized danger,  and  the  patents  in  suit — notwithstanding  some  incon- 
sistencies to  be  found  in  the  record,  which  I  will  not  stop  to  discuss — 
must  be  regarded  as  distinctly  designed  to  meet  and  obviate  it. 

2  See  Childs '  Personal  Property,  §  79. 


170  Cases  on  Personal  Property 

This  is  what  was  claimed  for  them  on  their  passage  through  the 
Patent  Office,  and  it  sufficiently,  although  more  obscurely,  appears 
in  the  specifications  themselves.  The  method  devised  by  the 
inventor  to  remedy  the  difficulty  was  not,  as  might  be  supposed, 
by  endeavouring  to  decrease  the  frictional  wear  at  the  perij^hery  of 
the  disk  (as  is  done,  for  instance,  in  the  Thomson  meter,  already 
referred  to,  by  the  use  of  thrust  rollers),  but,  on  the  contrary,  by 
augmenting  it;  at  the  same  time  providing  that  the  wear  at  the 
ball  shall  be  reduced  to  a  minimum,  so  that  with  the  one  going 
on  faster  than  the  other,  the  original  clearance  will  be  maintained. 
It  is  stoutly  contended  by  the  defendants  that  this  arrangement 
produces  no  such  practical  or  beneficial  result,  but,  notwithstanding 
what  is  said  of  it  on  that  side,  I  am  persuaded  that  it  is  theoretically 
correct,  and  calculated  to  perform  the  function  claimed  for  it.  The 
criticism  which  is  so  made  of  it  serves  to  show  that  the  device  was 
by  no  means  obvious,  and  that  it  required  a  certain  amount  of 
inventive  ingenuity  to  appreciate  and  apply  it.  It  is  not  with  this 
part  of  the  case  that  I  experience  any  difficulty,  but  rather  with 
the  means  employed  to  realize  the  invention,  and  the  generalty  of 
the  claims  formulated  to  express  it. 

The  claims  particularly  relied  upon  in  the  first  patent  are  as 
follows : 

"  (1)  In  a  water  meter,  a  nutating  piston,  composed  of  ball  and 
disk  combined  with  a  case  provided  with  seats  for  the  piston  ball, 
the  disk  of  the  piston  and  the  spherical  walls  of  the  case  being 
composed  of  substances  having  a  larger  coefficient  of  abrasion  than 
the  substances  composing  the  ball  of  the  piston  and  its  seats  in  the 
case.  (2)  In  a  water  meter,  the  disk  of  a  nutating  piston  and  the 
opposing  case  walls,  made  of  similar  materials,  combined  with 
the  ball  of  said  piston  and  the  ball  bearings  in  the  case,  made  of 
dissimilar  materials. ' ' 

The  single  claim  of  the  second  patent  is  much  the  same : 

"In  a  water  meter,  the  combination  of  a  piston  composed  of  a 
ball  and  disk,  both  made  of  metal,  with  a  case  made  of  metal,  and 
a  seat  for  the  ball,  made  of  nonmetallic  material. ' ' 

It  cannot  but  be  evident  that  these  claims  are  very  highly  and 
broadly  generalized,  laying  them  open  to  the  charge  that  they 
attempt  to  patent  a  mere  result  or  abstraction,  rather  than  a  speci- 
fied means  for  accomplishing  it,  which  is  alone  patentable.  0  'Reilly 
V.  Morse,  15  How.  62,  14  L.  Ed.  601.  In  the  first  claim  the  inventor 
practically  monopolizes  every  means,  whether  structural  or  material, 
by  which  a  relatively  greater  wear  is  secured  at  the  rim  than  goes 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       171 

ou  at  the  center  j  while  the  second  is  not  far  behind,  embracing, 
as  it  does,  the  use  of  similar,  but  unspecified,  materials  at  the  one 
place  as  against  dissimilar  and  unspecified  materials  at  the  other. 
The  second  patent  may  be  somewhat  less  broad,  but  not  much  so; 
metal  against  metal  being  specified  for  the  one  place,  and  metal 
against  a  nonmetallic  material  for  the  other.  The  extended  char- 
acter of  these  claims  is  shown  by  the  position  taken  with  regard 
to  them  in  the  evidence.  Dr.  Morton  gives  it  as  his  opinion,  for 
instance,  that  the  first  patent  would  be  realized  wherever,  by  any 
means,  structural  or  otherwise,  less  frictional  wear  is  secured  at 
the  seat  of  the  ball  than  goes  on  at  the  rim  of  the  disk.  This, 
as  he  says,  would  include  the  previous  Thomson  (1891)  tapering 
disk,  or  the  subsequent  Nash  (1894)  knife  edge,  in  the  latter  of 
Mhich  (a  hard  rubber  disk  in  a  metallic  ease  being  retained  on 
account  of  its  lightness)  the  necessary  abrasion  is  secured  by  a 
reduction  of  area  at  the  rim,  as  well  as  by  a  pointing  or  sharpening 
of  it;  and  would  even  extend  to  a  case  in  which  the  abrasion  at 
the  ball  and  seat  was  rendered  less  by  a  permanent  lubrication 
of  these  parts  by  a  properly  maintained  film  of  oil  or  graphite. 
In  line  with  this,  infringement  of  the  second  patent  is  made  out, 
as  we  have  seen,  by  the  mere  introduction  in  an  ordinary  all-metal 
case  having  an  all-metal  disk  of  any  well-known  and  constantly 
used  nonmetallic  antifrictional  bearing.  The  patent  law  was  not 
designed  to  favor,  and  does  not  support,  any  such  sweeping  gen- 
eralities. An  inventor  is  entitled  to  the  benefit  of  any  useful  dis-, 
covery  which  he  may  make,  be  it  product,  process,  or  structure,  but 
he  must  put  it  into  concrete  form.  The  furthest  that  the  courts 
have  gone  in  upholding  as  patentable  the  mere  use  of  materials  to 
produce  a  desired  result  is  in  the  case  of  Smith  v.  Goodyear  Dental 
Company,  93  U.  S.  486,  23  L.  Ed.  952,  affirmed  in  Goodyear  Dental 
Company  v.  Davis,  102  U.  S.  222,  26  L.  Ed.  149,  M^here  a  patent  for 
a  dental  plate  of  vulcanized  rubber  for  holding  artificial  teeth  is  sus- 
tained ;  but  even  there  not  only  was  the  material  of  a  composite  char- 
acter, but  it  was  closely  identified  with  the  process  devised  by  the 
inventor,  in  which  it  was  beneficially  employed.  There  was  no  claim, 
as  here,  for  materials,  unlimited  and  undefined,  where  the  only 
thing  specified  is  that  they  combine  to  perform  a  certain  function. 
This  condemns,  as  it -seems  to  me,  not  only  the  first  two  claims  of 
the  first  patent,  but  the  single  claim  of  the  second  patent  as 
well.     *     *     * 

Let  a  decree  be  drawn  dismissing  the  bill,  with  costs.-*^ 

8  See  Childs'  Personal  Property,  S§  77,  78,  79. 


172  Cases  on  Personal  Property   _ 

Abandonment. 
INTERNATIONAL  TOOTH-CROWN  CO.  v.  GAYLORD  et  al. 

140  U.  S.  58,  2  Sup.  Ct.  Rep.  716,  35  L.  Ed.  347.    1891. 

[A  bill  to  prevent  the  infringement  of  a  patent  for  fixing  an 
artificial  crown  to  the  roots  of  a  tooth  by  means  of  a  metal  plate 
and  pins.    Bill  dismissed.] 

Further  facts  are  stated  in  the  opinion. 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court. 

Prior  to  the  invention  of  Dr.  Richmond,  the  only  method  of 
supplying  an  artificial  for  a  natural  crown,  in  case  the  tooth  had 
decayed  or  broken  off,  was  by  what  is  called  a  "peg  tooth."  This 
was  made  by  drilling  the  nerve  canal  larger;  then  a  porcelain 
tooth  with  a  hole  in  it  was  ground  to  fit  the  root,  and  the  two 
were  connected  together  by  a  wooden  or  metallic  pin  or  dowel  made 
to  fit  the  hole  in  the  porcelain  as  well  as  the  hole  in  the  tooth.  The 
operation,  however,  was  very  unsatisfactory.  *  *  *  j^  was  the 
object  of  Dr.  Richmond  to  supersede  this  method  of  crowning  teeth 
by  a  more  perfect,  cleanly,  and  durable  device. 

It  is  substantially  conceded  in  this  case,  and  was  found  by  the 
court  below,  that  his  patent  No,  277,941  describes  an  invention  of 
great  utility  in  the  practice  of  dentistry,  which  has  been  largely 
adopted  by  the  profession  throughout  the  country,  for  building 
upon  the  roots  of  decayed  teeth  artificial  crowns.     *     *     * 

Gold  or  other  metallic  caps  were  not  wholly  unknown  before 
the  invention  of  Dr.  Richmond.  One  such,  known  as  the  "Morri- 
son Operation,"  was  described  in  the  Missouri  Dental  Journal  of 
May,  1879.  Another  is  explained  in  the  patent  of  November  4, 
1873,  to  John  B.  Beers,  who  seems  to  have  been  the  first  to  make 
use  of  a  screw  or  pivot  to  attach  the  cap  to  the  root  of  the  tooth. 
In  both  of  these  cement  or  porcelain  enamel  was  used  to  fill  the 
cap  and  secure  the  necessary  adhe.sion  to  the  root.  Two  or  three 
other  similar  devices  are  shown ;  but  none  of  them  seem  to  have 
been  attended  by  any  practical  success,  and  neither  of  them  exhibits 
the  combination  of  the  Richmond  patent.  Indeed,  it  was  scarcely 
claimed  that  his  invention  had  been  anticipated;  and,  as  infringe- 
ment of  all  his  claims  was  admitted,  the  whole  defense  practically 
turned  upon  the  question  of  abandonment. 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       173 

The  facts  bearing  upon  this  defense  are  substantially  as  follows : 
Dr.  Richmond  began  his  experiments  in  fitting  a  gold  collar  to  the 
neck  of  a  tooth  as  early  as  1875  or  1876  in  San  Francisco,  and  he 
states  himself  that  he  performed  the  operation  described  in  his 
principal  patent  in  the  mouth  of  one  Kalloch  on  Christmas  of  1876, 
and,  so  far  as  he  knew,  the  operation  was  entirely  successful,  and 
the  tooth  still  remained  in  the  mouth  of  his  patient.  He  further 
states  in  his  examination  that  he  practiced  this  operation  extensively 
in  San  Francisco,  Chicago,  Detroit,  Cleveland,  New  York,  and 
New  London,  and  demonstrated  it  to  500  dentists  in  private  prac- 
tice and  in  public  clinics.     *     *     * 

It  is  but  just  to  the  plaintiff  to  state  in  this  connection  that 
Richmond  appears  to  have  had  a  quarrel  with  the  treasurer  of  the 
plaintiff  company  in  1883,  very  soon  after  the  patent  was  issued 
to  the  Richmond  Tooth-Crown  Company  as  assignee  of  the  inventor, 
and  that  he  was  called  as  a  witness  by  the  defendants,  and  appar- 
ently testified  under  a  strong  bias  against  the  plaintiff;  but  his 
evidence  regarding  the  extent  of  his  operations  is  fortified  by  a 
large  number  of  letters  from  dentists  in  different  parts  of  the 
country,  written  in  1878  and  1879,  certifying  in  strong  language 
to  the  value  of  his  invention.  Indeed,  the  evidence  is  that  he 
instructed  Dr.  Gaylord,  one  of  the  defendants  in  this  suit,  in  the 
art  of  making  and  applying  his  tooth-crown  as  early  as  1879, 
performing  two  operations  in  Dr.  Gaylord 's  mouth  and  one  in  that 
of  a  patient,  and  receiving  pay  for  the  same.  As  the  application 
for  the  patent  was  not  made  until  December  1,  1882,— more  than 
two  years  after  all  these  operations  were  conducted — the  evidence 
of  abandonment  is  overAvhelming  if  it  be  once  admitted  that  the 
operation  was  identical  with  that  described  in  the  patent,  or  differ- 
ent from  it  only  in  an  immaterial  particular. 

The  reply  to  all  this  testimony  is  that  the  tooth-crowns  made 
prior  to  the  year  1880  were  defective,  because  they  M^ere  made  with 
an  incomplete  metallic  floor  to  the  ferrule,  and  for  that  reason  the 
metal  cap  or  thimble  was  more  or  less  leaky.  There  is  considerable 
evidence  upon  this  point ;  Dr.  Gaylord  swearing  that  the  operation 
taught  to  him  was  exactly  like  that  which  was  described  in  the 
patent,  while  the  plaintiff's  witnesses  lay  great  stress  upon  the 
point  that  the  cap  was  imperfect  by  reason  of  the  incomplete 
covering  of  the  root,  although  in  some  cases  the  hole  or  aperture 
is  admitted  to  have  been  microscopic.  *  *  *  The  controversy 
as  to  this  patent  is  thus  narrowed  to  the  question  whether  the  substi- 
tution of  a  complete  floor  over  the  end  of  the  ferrule,  so  as  to 


174  Cases  on  Personal  Property 

wholly  inclose  the  end  of  the  natural  root,  in  the  place  of  a  partial 
floor,  involves  sufficient  invention  to  sustain  the  patent." 

But  whether  a  cap  thus  constructed  be  imperfect  or  not,  it  is 
entirely  clear  that  the  closing  of  this  alleged  hole,  which  is  so  small 
that  its  very  existence  is  denied,  is  such  a  carrying  forward  and 
perfection  of  the  original  device  as  would  occur  to  any  ordinary 
dentist,  since  it  is  of  the  very  alphabet  of  dental  science  that  the 
dentine  of  a  tooth  shall  be  protected  as  far  as  possible  from  the 
action  of  food  and  the  fluids  of  the  mouth.  There  is  little  doubt 
that  some  progress  was  made  between  the  first  operations  of  Dr. 
Richmond  in  San  Francisco  and  that  disclosed  by  his  patent ;  but 
the  real  invention  was  made  when  the  ferrule  with  the  porcelain 
crown  was  adopted  and  applied  to  the  root  of  a  tooth  prepared 
for  the  purpose  of  receiving  it.  All  subsequent  progress  was  made 
on  this  line  and  in  furtherance  of  this  idea,  and  was  such  as  would 
occur  to  an  ordinarily  skillful  dentist.  There  is  a  multitude  of 
eases  in  this  court  to  the  effect  that  something  more  is  required 
to  support  a  patent  than  a  slight  advance  over  what  had  preceded 
it,  or  mere  superiority  in  workmanship  or  finish.  Saiith  v.  Nichols, 
21  Wall.  112;  Atlantic  Works  v.  Brady,  107  U.  S.  192,  199,  2  Sup. 
Ct.  Rep.  225 ;  Pickering  v.  McCullough,  104  U.  S.  310. 

Nor  do  we  think  the  use  which  Dr.  Richmond  made  of  his  inven- 
tion can  be  fairly  called  experimental.  The  fact  that  he  taught 
it  to  a  large  number  of  dentists  throughout  the  country,  with  no 
suggestion  that  it  was  an  experiment,  and  received  pay  for  such 
instruction,  precludes  the  defense  he  now  sets  up  that  all  this  was 
simply  tentative.  It  was  said  in  Manufacturing  Co.  v.  Sprague, 
123  IT.  S.  249,  256,  8  Sup.  Ct.  Rep.  126,  by  Mr.  Justice  Matthews, 
speaking  for  this  court:  "A  use  by  the  inventor  for  the  purpose 
of  testing  the  machine,  in  order  by  experiment  to  devise  addi- 
tional means  for  perfecting  the  success  of  its  operation,  is  admis- 
sible ;  and  where,  as  incident  to  such  use,  the  product  of  its  opera- 
tion is  disposed  of  by  sale,  such  profit  from  its  use  does  not  change 
its  character;  but  where  the  use  is  mainly  for  the  purposes  of 
trade  and  profit,  and  the  experiment  is  merely  incidental  to  that, 
the  principal,  and  not  the  incident,  must  give  character  to  the  use. 
The  thing  implied  as  excepted  out  of  the  prohibition  of  the  statute 
is  a  use  which  may  be  properly  characterized  as  substantially  for 
purposes  of  experiment.  Where  the  substantial  use  is  not  for  that 
purpose,  but  is  otherwise  public,  and  for  more  than  two  years 
prior  to  the  application,  it  comes  within  the  prohibition."  If,  as 
was  said  in  Fruit  Jar  Co.  v.  Wright,  94  U.  S.  92,  94,  and  Egbert 


Patents,  Copyright,  GtOodwill,  Trademarks,  Etc.       175 

V.  Lippmann,  104  U.  S.  333,  a  single  instance  of  sale  or  of  nse  by 
the  patentee  may  be  fatal  to  the  patent,  much  more  is  this  so 
where  the  patentee  publicly  performs  an  operation  covered  by  his 
patent  in  a  dozen  different  cities  throughout  the  country,  and 
teaches  it  to  other  members  of  the  profession,  who  adopt  it  as  a 
recognized  feature  of  their  practice.  Granting  that,  under  the 
rule  laid  down  in  Elizabeth  v.  Pavement  Co.,  97  U.  S.  126,  a 
patentee  has  a  right  to  test  the  durability  of  his  invention  as  one 
of  the  elements  of  its  success,  it  is  manifest  that  his  experiments 
to  that  end  should  extend  no  further,  either  in  time  or  in  the  num- 
ber of  cases  in  which  it  is  used,  than  is  reasonably  necessary  for  that 
purpose.     *     *     * 

In  preparing  his  specification  Dr.  Richmond  naturally  laid  great 
stress  upon  the  hermetical  sealing  of  the  cap;  as  he  must  have 
been  satisfied  that  his  first  operations  constituted  a  complete  aban- 
donment of  what  he  did  to  the  public,  and  that  the  entire  validity 
of  his  proposed  patent  would  depend  upon  his  ability  to  draw  a 
distinction  between  his  operations  as  formerly  and  as  then  con- 
ducted. We  are  satisfied,  however,  that  his  real  invention,  and 
the  only  one  to  which  he  was  properly  entitled  to  a  patent,  is  such 
as  he  put  in  practice  prior  to  the  years  1878  and  1879,  and  taught 
so  extensively  throughout  the  country.  In  the  light  of  this  testi- 
mony we  are  compelled  to  hold  that  this  constituted  such  an  aban- 
donment of  his  claim  as  to  preclude  his  obtaining  a  valid  patent 
for  it.     *     *     * 

The  decree  of  the  court  below  dismissing  the  bill  is,  therefore, 
affirmed.* 

Brewer,  J.,  did  not  sit  in  this  case,  and  took  no  part  in  its 
decision. 

4  The  exclusive  right  to  malte,  use,  and  vend  an  invention  or  discovery  does 
not  give  to  the  patentee  the  right  to  control  the  price  at  which  such  article 
may  be  resold  bv  a  purchaser.  Bauer  &  Cie,  and  The  Bauer  Chemical  Co.  v. 
O'Donnell,  229  U.  S.  1,  33  Sup.  Ct.  Eep.  616,  57  L.  Ed.  1041,  50  L.  R.  A. 
(N.  S.)  1185. 

See  Childs'  Personal  Property,  §80. 


JV. 


176  Cases  on  Personal.  Property 

Copyright. 
Definition — Kinds.    Common  Law;  Statutory.      . 

V 

STATE  V.  STATE  JOURNAL  CO. 

77  Neb.  752,  110  N.  W.  763,  9  L.  R.  A.  (N.  S.)  174.    1906. 

[See  same  case,  75  Neb.  275.] 

[The  facts  appear  to  be  as  follows:  The  defendant,  a  printing 
company,  contracted  with  the  State  of  Nebraska  to  publish  the 
reports  of  the  supreme  court  of  that  state.  The  plates  from  which 
such  reports  were  printed  were  to  belong  to  and  remain  the  prop- 
erty of  the  State  of  Nebraska,  and,  when  the  stipulated  number 
of  reports  (1,000  each)  was  printed,  the  plates  were  to  be  deliv- 
ered to  the  state.  The  defendant  secretly  printed  and  sold  copies 
of  said  reports  for  its  own  use  and  benefit,  thereby  violating  the 
relation  of  trust  and  confidence  reposed  in  the  defendant  by  the 
plaintiff.  The  plaintiff  sought  to  recover  damages  for  the  alleged 
breach  of  the  printing  contracts  and  abuse  of  the  relation  of  trust 
and  confidence  assumed  by  the  defendant  as  publisher.  Defendant 
demurred  and  was  sustained.     Plaintiff  appealed.] 

Sedgwick,  C.  J.  When  the  ruling  upon  the  second  demurrer 
was  sustained  for  the  reasons  stated  in  the  opinion  (106  N.  W, 
434),  a  motion  for  new  trial  was  filed;  this  being  an  action  brought 
originally  in  this  court.  Upon  this  motion  the  Attorney  General 
filed  an  able  and  exhaustive  brief.  *  *  *  in  the  brief  filed 
and  upon  the  argument  the  state  admits  that  it  has  no  claim  "for 
infringement  of  copyrights  or  for  damages  for  misuse  of  literary 
productions." 

The  position  taken  by  the  state  upon  this  point  is  stated  in  the 
brief  in  these  words:  "It  is  correctly  stated  in  the  opinion  that 
all  persons  have  a  right  to  publish  the  decisions  of  this  court.  The 
West  Publishing  Company  does  so.  It  buys  copies  of  the  opinions 
from  the  reporter  of  this  court.  It  edits  its  own  manuscripts, 
sets  its  own  type,  makes  its  own  plates,  prints  its  own  copies, 
binds  them,  and  sells  them  openly  to  the  public.'^  We  do  not 
think  that  the  counsel  for  the  state  have  fully  appreciated  the 
quality  and  force  of  this  admission.     *     *     *     The  literary  matter 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       177 

involved  in  these  reports  became  the  property  of  the  public  before 
the  manuscripts  ,  or  any  other  property  of  the  state,  were  placed 
in  the  hands  of  the  defendant  to  enable  it  to  carry  out  the  terms 
of  its  contract  with  the  state.  The  syllabi  of  the  opinions  are 
regularly  published  in  the  newspapers  of  the  state  as  soon  as  the 
decisions  are  rendered,  and  frequently  extracts  from  the  opinions, 
and  sometimes  the  opinions  themselves,  are  also  so  published. 
Copies  of  the  opinions  as  well  as  the  syllabi  are  furnished  to  any 
and  all  parties  desiring  them  upon  payment  for  copying  them,  and 
no  attempt  is  made  to  preserve  any  claim  on  the  part  of  the  state 
in  these  syllabi  or  opinions.  It  was  therefore  impossible  that  the 
defendant  should  cause  any  injury  to  the  state  by  making  this 
matter  public. 

What  interest  or  right  of  the  state  then  has  been  interfered  with, 
or  damaged,  by  the  acts  of  he  defendant?  The  answer  of  the 
state's  brief  is:  "The  state  engaged  in  the  enterprise  of  pub- 
lishing the  decisions  of  the  Supreme  Court  for  the  purpose  of 
creating  a  fund  to  buy  books  for  the  state  library.  *  *  *  For 
the  purpose  of  creating  a  fund  to  purchase  books  for  the  benefit 
of  the  state  library  the  state  has  by  statute  made  provision  for 
engaging  in  the  business  of  publishing  the  Supreme  Court  Reports^ 
*  *  *  We  do  not  coincide  with  the  view  that  the  main  purpose 
of  the  statute  is  to  establish  a  printing  and  publishing  business  to 
make  profits  with  which  to  replenish  the  library  funds.  The  pur- 
pose would  seem  rather  to  be  to  make  the  opinions  of  the  court  easily 
realize  a  profit  upon  the  sale  of  the  reports,  and  that  the  intention 
was  to  use  that  profit  for  the  benefit  of  the  library  fund.     *     *     * 

The  proposition  is  stated  in  the  brief  that,  when  one  employs 
another  to  manufacture  pictures  or  books  for  him,  the  person  so 
employed  has  no  right  to  make  any  other  copies  for  his  own  benefit. 
Several  cases  were  cited  as  illustrating  this  proposition  and  its  appli- 
cation to  the  case  at  bar.  Pollard  v.  Photographic  Company,  40 
L,  R.  C.  D.  352,  is  one  of  the  eases  relied  upon.  That  was  an  action 
to  restrain  the  defendant  "from  selling  or  offering  for  sale  or 
exposing  by  way  of  advertisement  or  otherwise  a  certain  photo- 
graph of  the  plaintiff,  Alice  Morris  Pollard,  got  up  as  a  Christmas 
card,  and  from  selling  or  exposing  for  sale  or  otherwise  dealing 
with  such  "photograph."  The  lady  was  photographed  at  defend- 
ant's shop  and  paid  for  a  likeness  of  herself  taken  from  negatives 
then  made.  "It  was  found  by  the  plaintiffs  that  a  photographic 
likeness  of  Mrs.  Pollard  taken  from  one  of  the  negatives,  got  up 
in  the  form  of  a  Christmas  card,  was  being  exhibited  in  the  de- 
C.P.P.— 12 


178  Cases  on  Personal.  Property 

fendant's  shop  window  at  Rochester."  In  the  course  of  the  argu- 
ment one  of  the  judges  remarked :  ' '  Injunctions  have  been  granted 
to  restrain  a  libel. ' '  The  photograph  was  a  private  matter,  it  never 
had  been  published,  and  the  attempt  to  publish  it  on  the  part  of 
the  defendant  was  the  injury  complained  of.  The  case  illustrates 
the  doctrine  of  the  right  of  privacy.  This  right  of  the  plaintiff  to 
prevent  her  photograph  from  being  made  public  against  her  wish 
was  so  well  established  in  English  law  that  it  was  unnecessary  to 
discuss  that  right.  The  question  discussed  was  whether  she  had 
waived  that  right  by  employing  the  photographer  to  make  the 
negative  without  at  the  same  time  stipulating  that  he  should  not 
publish  it,  and  the  court  held  after  much  discussion  that  it  w^as 
not  necessary  to  make  the  express  stipulation  in  the  contract  that 
they  should  not  be  published,  that  such  stipulation  would  be 
implied,  and  this  is  the  whole  matter  discussed  in  the  case.     *     *     * 

In  this  connection  it  will  be  remembered  that  the  author  of  a 
manuscript  is  in  this  country  not  obliged  to  give  it  to  the  M'orld. 
He  may  keep  it  as  a  private  matter  as  long  as  he  does  not  publish 
it,  and  at  any  time  when  he  decised  to  publish  it  he  rna.y  obtain 
a  copyright  thereon ;  so  that,  while  he  holds  the  matter  unpublished, 
he  has  a  special  interest  in  it  which  would  entitle  him  to  prevent 
its  publication.  The  English  statute  gave  a  similar  right  to  one 
who  was  photographed  to  prevent  the  photograph  from  being  made 
public.  In  the  state's  brief  it  is  said  that  this  case  was  followed 
by  the  United  States  Circuit  Court  of  the  District  of  Massachusetts, 
in  Corliss  v.  Walker,  57  Fed.  436.  In  that  case  an  injunction  was 
allowed  in  the  suit  of  Mrs.  Corliss  to  prevent  the  publication  of 
a  picture  of  Mr.  Corliss,  who  was  then  deceased.  Afterwards  a 
motion  was  made  to  dissolve  this  injunction.  This  motion  was 
sustained,  and,  in  passing  upon  this  motion,  the  court  said:  "But, 
while  the  right  of  a  private  individual  to  prohibit  the  reproduction 
of  his  picture  or  photograph  should  be  recognized  and  enforced, 
this  right  may  be  surrendered  or  dedicated  to  the  public  by  the  act 
of  the  individual,  just  the  same  as  a  private  manuscript,  book,  or 
painting  becomes  (when  not  protected  by  copyright)  public  prop- 
erty by  the  act  of  publication."     *     *     * 

Another  important  matter  has  been  overlooked  in  the  plaintiff's 
discussion.  It  is  mentioned  in  the  opinion  of  Lindley,  L.  J.  He 
said :  "I  am  quite  aware  of  the  ambiguity  of  the  word  'copyright. ' 
But  that  which  is  called  'copyright'  at  common  law  has  been 
shown,  by  the  decision  of  the  House  of  Lords  in  Jefferys  v.  Boosey, 
to  be  an  incident  of  property,  and  nothing  more.     'Copyright' 


Patexts,  Copyright,  Goodwill,  Tradejmarks,  Etc.        179 

under  the  act  is  something  far  beyond  that.  It  is  the  exclusive 
right  of  multiplying  copies  of  a  work  already  published."  In  the 
discussion  of  the  case  before  the  divisional  court,  beginning  on 
page  52  of  the  same  volume,  the  difficulties  which  have  arisen  from 
this  ambiguous  use  of  the  word  "copyright"  are  plainly  pointed 
out.  The  word  has  sometimes  been  applied  to  the  "right  to  pub- 
lish or  to  abst-ain  from  publishing  a  work  not  yet  published  at  all. ' ' 
This  is  the  common-law  right  which  every  one  has  in  his  own 
productions,  whether  they  be  literary,  ornamental,  or  of  a  more 
substantial  nature.  He  may  keep  them  entirely  to  himself  as  long 
as  he  chooses,  and  while  he  does  so  he  has  an  exclusive  right  to 
them,  and  no  person  has  a  right  to  interfere  with  them  or  destroy 
them.  To  make  them  public  would  be  to  destroy  this  right.  This 
right  is  perhaps  not  strictly  a  copyright,  but  that  name  has  fre- 
quently been  applied  to  it,  and  in  the  case  under  discussion  it  is  said 
by  a  majority  of  the  court  to  be  a  copyright.  Whatever  it  may  be 
called,  it  is  the  registering  of  this  right,  or  in  our  country  the 
complying  with  the  law  in  regard  to  copyright,  which  preserves 
the  right  in  the  work  after  it  has  been  published.  Unless  the 
copyright  laws  are  complied  with,  publication  works  an  abandon- 
ment of  all  further  right. 

Grove,  J.,  of  the  divisional  court,  quoted  the  following  language 
from  Lord  Brougham:  "Whatever  may  have  been  the  original 
right  of  the  author,  the  publication  appears  to  be  of  necessity  an 
abandonment.  As  long  as  he  kept  the  composition  to  himself,  or 
to  a  select  few  placed  under  condition,  he  was  like  the  owner  of  a 
private  road;  none  but  himself  or  those  he  permitted  could  use 
it.  But,  when  he  made  the  work  public,  he  resembled  that  owner 
after  he  had  abandoned  it,  who  could  not  directly  prohibit  passen- 
gers, or  exact  from  them  a  consideration  for  the  use  of  it."  A 
further  quotation  is  made  from  language  used  by  Lord  Brougham 
in  speaking  of  a  copyright  in  the  sense  of  exclusive  right  of  multi- 
plying copies  of  a  work  already  published,  as  follows:  "That 
which  was  before  incapable  of  being  dealt  with  as  property  by 
the  common  law  became  clothed  by  the  lawgiver's  acts  with  the 
qualities  of  property ;  and  thus  the  same  authority  of  the  lawgiver, 
but  exercised  righteously  and  wisely  for  a  legitimate  and  beneficent 
purpose,  gave  to  the  produce  of  literary  labour  that  protection 
which  the  common  law  refused  it,  ignorant  of  its  existence,  and 
this  protection  is  therefore,  in  my  opinion,  tlie  mere  creature  of 
legislative  enactment." 

These  pictures  had  never  been  published.     The  court  recognized 


180  Cases  on  Personal  Property 

the  right  which  the  designer  and  maker  of  the  pictures  had  to 
keep  them  for  his  own  private  use,  and  to  publish  them,  or  refrain 
from  publishing  them,  at  his  pleasure.  That  right,  which  was 
independent  of  their  statute,  was  violated  by  the  defendant,  and 
the  discussion  is  as  to  whether  under  the  circumstances  there  was 
an  implied  contract  that  the  defendant  should  not  violate  that 
right.  The  court  found  that  there  was  such  an  implied  contract, 
and  so  allowed  the  plaintiff  to  recover  damages.  After  publication, 
nothing  but  compliance  with  the  statute  will  save  the  right.  This 
is  the  ordinary  and  strictly  proper  use  of  the  word  ' '  copyright ' ' — 
the  right  to  make  it  public  and  still  retain  the  beneficial  interest 
in  it.  No  right  remains  in  a  literary  production  which  has  been 
made  public,  except  under  the  federal  copyright  act.  This  is  the 
sense  in  which  the  word  copyright  was  used  in  the  former  opinion. 
The  fact  that  the  state  had  dedicated  to  the  public  the  literary- 
matter  embraced  in  the  manuscript  furnished  to  the  defendant, 
by  furnishing  it  to  the  West  Publishing  Company  for  publication, 
and  in  various  other  ways  pointed  out  above,  was  not  denied  in 
the  petition,  and  was  understood  by  all  parties.  Upon  this  under- 
standing the  case  was  presented  to  the  court.  Upon  the  theory 
that  his  was  a  private  matter,  and  had  never  been  dedicated  to  the 
public,  the  proposition  of  law  involved  in  the  first  paragraph  of 
the  former  opinion  would  not  be  technically  correct,  and  the  same 
might  be  said  of  some  of  the  expressions  of  the  opinion. 

*  *  *  The  state  had  the  right  in  the  manuscripts  and  in  the 
plates,  and  the  defendant  did  wrong  in  using  them  without  the 
consent  of  the  state,  and  would  be  liable  under  suitable  allegations 
for  such  injury  as  the  state  suffered  by  reason  thereof.  The  con- 
tract between  the  plaintiff  and  the  state  was  of  such  a  nature  that 
the  agreement  on  the  part  of  the  defendant  not  to  use  the  plates 
and  manuscripts  of  the  state  for  such  purpose  might  be  reasonably 
implied,  because  the  defendant  had  no  right  to  so  use  them ;  but  we 
cannot  imply  from  the  contract  an  agreement  not  to  do  that  which 
the  defendant  in  common  vsdth  all  other  citizens  had  full  right  to 
do.  When  the  contract  was  made,  both  parties  must  have  known 
that  the  defendant  had  the  right  to  obtain  and  publish  the  opinions- 
of  the  Supreme  Court.  There  was  nothing  in  the  contract  incon- 
sistent with  that  right,  and  no  implication  can  be  drawn  from  the 
contract  that  the  defendant  renounced  or  waived  that  right.  The 
injury  to  the  state,  then,  is  in  the  use  that  the  defendant  has  made 
of  the  manuscripts  and  plates,  and  does  not  arise  from  the  manu- 
facture and  sale  of  the  volumes  of  the  reports,  which  the  defendant 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       181 

might  have  done  by  other  means  and  without  the  use  of  the  plain- 
tiff's property. 

*  *  *  The  state  has  a  right  to  control  the  use  of  its  own 
property,  and,  when  by  contract  it  places  its  property  in  the  hands 
of  its  employees  for  a  special  purpose,  the  law,  in  the  absence  of 
anything  in  the  contract  to  the  contrary,  will  imply  an  agreement 
that  the  property  shall  be  used  only  for  that  purpose.  This  is 
because  any  further  use  of  it  would  violate  the  right  of  the  state 
to  control  its  use.  This  principle  cannot  extend  to  the  making  and 
selling  the  reports  on  defendant's  own  account,  because  this  did 
not  violate  a  right  of  the  state.  The  state  could  not  restrict  the 
right  of  any  citizen  to  make  and  sell  these  reports,  because  they 
had  been  already  published,  and  were  not  copyrighted.  If  the 
state  had  required  the  defendant  to  stipulate  in  the  contract  that 
it  would  not  make  and  sell  any  copies  of  the  report  on  its  own 
account,  it  may  be  that  such  stipulation  could  have  been  enforced. 
The  law  will  not  imply  such  a  stipulation  in  the  contract,  when  in 
fact  none  exists,  because  the  state  had  no  private  ownership  in  the 
literary  matter ;  that  private  o"wnership,  if  any  ever  existed,  having 
been  waived  and  abandoned  by  publication.  The  state  therefore 
had  no  right  that  could  be  violated  by  making  and  selling  the  re- 
ports, and  there  is  no  basis  for  the  implication  of  an  agreement 
on  the  part  of  the  defendant  that  it  would  not  make  and  sell  reports 
on  its  own  account. 

We  think  that  the  judgment  heretofore  entered  is  right,  and  it  is 
adhered  to.^ 

[Letton,  J.,  dissented  on  the  question  of  contract.]  i  <    *f   7^^ 


'jUb^ 


HOLMES,  JR.,  V.  HURST. 
174  V.  S.  82,  19  Sup.  Ct.  Rep.  606,  43  L.  Ed.  904.     1899. 

[Bill  in  equity  by  the  executor  of  the  will  of  the  late  Dr.  Oliver 
"Wendell  Holmes,  praying  an  injunction  against  the  infringement 
of  the  copyright  of  a  book  originally  published  by  plaintiff's  testator 
under  the  title  of  "The  Autocrat  of  the  Breakfast  Table."  The 
facts  are  substantially  as  follows : 

Dr.  Holmes  was  the  author  of  "The  Autocrat  of  the  Breakfast 

Table,"  which,  during  the  years  1857  and  1858,  was  published  by 

Phillips,  Sampson  &  Co.  of  Boston  in  twelve  successive  numbers 

of  the  Atlantic  Monthly,  a  periodical  magazine  published  by  them. 

5  See  Childs '  Personal  Property,  §  85. 


182  Cases  on  Personal  Property 

These  twelve  parts  were  published  under  an  agreement  between 
Dr.  Holmes  and  said  firm,  whereby  the  author  granted  them  the 
privilege  of  publishing  the  same,  the  firm  stipulating  that  they 
should  have  no  other  right  in  or  to  said  book.  No  copyright  was 
secured  either  by  the  author  or  by  the  firm  or  by  any  other  person 
in  any  of  the  twelve  numbers  so  published  in  the  Atlantic  Monthly ; 
but  on  Nov.  2,  1858,  after  the  publication  of  the  last  of  the  twelve 
numbers,  Dr.  Holmes  deposited  a  printed  copy  of  the  title  of  the 
book  in  the  clerk's  office  of  the  district  court  of  the  district  of  I\Iassa- 
chusetts,  wherein  the  author  resided.  The  book  was  published  by 
the  above  firm  on  Nov.  22,  1858,  and  on  the  same  day  a  copy  of 
the  book  was  delivered  to  the  clerk  of  the  district  court.  The 
usual  notice  of  entry  according  to  act  of  congress,  etc.,  by  Oliver 
Wendell  Holmes,  etc.,  was  printed  in  every  copy  of  every  edition 
of  the  work  subsequently  published.  There  was  a  slight  variation 
in  the  edition  published  in  1874. 

On  July  12,  1886,  Dr.  Holmes  recorded  the  title  a  second  time; 
sent  a  printed  copy  to  the  Librarian  of  Congress,  who  recorded  the 
same,  etc.,  "Copyright,  1886,  by  Oliver  AVendell  Holmes." 

Since  November  1,  1894,  defendant  has  sold  ajid  disposed  of  a 
limited  number  of  the  copies  of  the  book  entitled  "The  Autocrat 
of  the  Breakfast  Table,"  all  of  which  were  copied  by  the  defendant 
from  the  twelve  numbers  of  the  Atlantic  Monthly  exactly  as  they 
were  originally  published,  and  upon  each  copy  so  sold  a  notice 
appeared  that  the  same  were  taken  from  the  said  twelve  numbers 
of  the  Atlantic  Monthly. 
'    ^From  a  decree  for  the  defendant  the  complainant  appealed.] 

]Mr.  Justice  Brow^n. — This  case  raises  the  question  whether  the 
serial  publication  of  a  book  in  a  monthly  magazine,  prior  to  any 
steps  taken  towards  securing  a  copyright,  is  such  a  publication  of 
the  same,  within  the  meaning  of  the  act  of  February  3,  1831,  as 
to  vitiate  a  copyright  of  the  whole  book,  obtained  subsequently, 
but  prior  to  the  publication  of  the  book  as  an  entirety. 

The  right  of  an  author,  irrespective  of  statute,  to  his  own  pro- 
ductions and  to  a  control  of  their  publication,  seems  to  have  been 
recognized  by  the  common  law,  but  to  have  been  so  ill  defined  that 
from  an  early  period  legislation  was  adopted  to  regulate  and  limit 
such  right.  The  earliest  recognition  of  this  common-law  right  is  to 
be  found  in  the  charter  of  the  Stationers'  Company,  and  certain 
decrees  of  the  star  chamber  promulgated  in  1556,  1585,  1623,  and 
1637,  providing  for  licensing  and  regulating  the  manner  of  printing 
and  the  number  of  presses  throughout  the  kingdom,  and  prohibit- 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       183 

ing  the  publication  of  unlicensed  books.  Indeed,  the  star  chamber 
seems  to  have  exercised  the  power  of  search,  confiscation,  and  im- 
prisonment without  interruption  from  parliament,  up  to  its  aboli- 
tion, in  1641.  From  this  time  the  law  seems  to  have  been  in  an 
unsettled  state — although  parliament  made  some  efforts  to  restrain 
the  licentiousness  of  thQ  press — until  the  eighth  year  of  Queen 
Anne,  when  the  first  copj'right  act  was  passed,  giving  authors  a 
monopoly  in  the  publication  of  their  works  for  a  period  of  from 
14  to  28  years.  Notwithstanding  this  act,  however,  the  chancery 
courts  continued  to  hold  that,  by  the  common  law  and  independ- 
ently of  legislation,  there  was  a  property  of  unlimited  duration  in 
printed  books.  This  principle  was  affirmed  so  late  as  1769  by  the 
court  of  king's  bench  in  the  very  carefully  considered  case  of 
]\Iillar  v.  Taylor,  4  Burrows  2303,  in  which  the  right  of  the  author 
of  "Thompson's  Seasons"  to  a  monopoly  of  this  work  was  asserted 
and  sustained.  But  a  few  years  thereafter  the  house  of  lords, 
upon  an  equal  division  of  the  judges,  declared  that  the  common- 
law  right  had  been  taken  away  by  the  statute  of  Anne,  and  that 
authors  were  limited  in  their  monopoly  by  that  act.  Donaldson  v. 
Becket,  Id.  2408.  This  remains  the  law  of  England  to  the  present 
day.  An  act  similar  in  its  provisions  to  the  statute  of  Anne  was 
enacted  by  congress  in  1790,  and  the  construction  put  upon  the 
latter  in  Donaldson  v.  Becket  was  followed  by  this  court  in  "Wheaton 
V.  Peters,  8  Pet.  591.  While  the  propriety  of  these  decisions  has 
been  the  subject  of  a  good  deal  of  controversy  among  legal  writers, 
it  seems  now  to  be  considered  the  settled  law  of  this  country  and 
England  that  the  right  of  an  author  to  a  monopoly  of  his  publica- 
tions is  measured  and  determined  by  the  copyright  act;  in  other 
words,  that,  while  a  right  did  exist  by  common  law,  it  has  been 
superseded  by  statute. 

The  right  thus  secured  by  the  copyright  act  is  not  a  right  to 
the  use  of  certain  words,  because  they  are  the  common  property 
of  the  human  race,  and  are  as  little  susceptible  of  private  appro- 
priation as  air  or  sunlight;  nor  is  it  the  right  to  ideas  alone, 
since  in  the  absence  of  means  of  communicating  them  they  are  of 
value  to  no  one  but  the  author.  But  the  right  is  to  that  arrange- 
ment of  words  which  the  author  has  selected  to  express  his  ideas, 
or,  as  Lord  Mansfield  describes  it,  "an  incorporeal  right  to  print  a 
set  of  intellectual  ideas  or  modes  of  thinking,  communicated  in  a 
set  of  words  or  sentences  and  modes  of  expression.  It  is  equally 
detached  from  the  manuscript  or  any  other  physical  existence 
whatsoever."     4  Burrows  2396.     The  nature  of  this  property  is 


184  Cases  on  Personal  Property 

perhaps  best  defined  by  Mr.  Justice  Erie  in  Jefferys  v.  Boosey, 
4  H.  L.  Cas.  815;  867 :  "The  subject  of  property  is  the  order  of  words 
in  the  author's  composition,  not  the  words  themselves;  they  being 
analogous  to  the  elements  of  matter  which  are  not  appropriated 
unless  combined,  nor  the  ideas  expressed  by  those  words,  they 
existing  in  the  mind  alone,  which  is  not  capable  of  appropriation. ' ' 

The  right  of  an  author  to  control  the  publication  of  his  works 
at  the  time  the  title  to  the  "Autocrat"  was  deposited  was  governed 
by  the  act  of  February  3,  1831   (4  Stat.  436).     *     *     * 

The  substance  of  these  enactments  is  that  by  section  1  the  author 
is  only  entitled  to  a  copyright  of  books  not  printed  and  published, 
and  by  section  4  that,  as  a  preliminary  to  the  recording  of  a 
copyright,  he  must,  before  publication,  deposit  a  printed  copy  of 
the  title  of  such  book,  etc. 

The  argument  of  the  plaintiff  in  this  connection  is  that  the 
publication  of  the  different  chapters  of  the  book  in  the  Atlantic 
Monthly  was  not  a  publication  of  the  copyright  book,  which  was 
the  subject  of  the  statutory  privilege ;  that  if  Dr.  Holmes  had  copy- 
righted and  published  the  12  parts,  one  after  the  other,  as  they 
were  published  in  the  magazine,  or  separately,  there  would  still 
have  remained  to  him  an  inchoate  right,  having  relation  to  the 
book  as  a  whole;  that  his  copyright  did  not  cover  and  include  the 
publication  of  the  12  parts  printed  as  they  were  printed  in  the 
Atlantic  Monthly;  and  that,  while  the  defendant  had  a  right  to 
make  copies  of  those  parts  and  to  sell  them  separately  or  collec- 
tively, he  had  no  right  to  combine  them  into  a  single  volume,  sin  -e 
that  is  the  real  subject  of  the  copyright.  Counsel  further  insisted 
that,  if  the  author  had  deposited  the  12  parts  of  the  book,  one  after 
the  other,  as  they  were  composed,  he  would  not  have  acquired  the 
statutory  privilege  to  which  he  seeks  to  give  effect ;  that  to  secure 
such  copyright  it  was  essential  to  do  three  things :  (1)  Deposit  the 
title,  "The  Autocrat  of  the  Breakfast  Table";  (2)  deposit  a  copy 
of  the  book,  "The  Autocrat  of  the  Breakfast  Table";  and  (3) 
comply  with  the  provisions  concerning  notice ;  that  he  could  acquire 
the  privilege  of  copyright  only  by  depositing  a  copy  of  the  very 
book  for  which  he  was  seeking  protection ;  that  if  the  taking  of  a 
copyright  for  each  chapter  created  a  privilege  Which  was  less  than 
the  privilege  which  would  have  been  acquired  by  withholding  the 
manuscript  until  the  book  w^as  completed,  and  then  taking  the 
copyright,  this  copyright  is  valid.  His  position,  briefly,  is  that  no 
one  of  the  12  copyrights,  if  each  chapter  were  copyrighted,  nor  all 
of  them  combined,  could  be  held  to  be  a  copyright,  in  the  sense 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       185 

of  the  statute,  of  the  book,  which  is  the  subject  of  the  copyright 
in  question ;  and  that  neither  separately  nor  collectively  could  they 
constitute  the  particular  privilege,  which  is  the  subject  of  the 
copyright  of  **The  Autocrat  of  the  Breakfast  Table,"  as  a  whole. 

We  find  it  unnecessary  to  determine  whether  the  requirement  of 
section  4  could  have  been  met  by  a  deposit  of  the  book,  "The  Auto- 
crat of  the  Breakfast  Table,"  prior  to  the  publication  of  the  first 
part  in  the  Atlantic  Monthly,  or  whether,  for  the  complete  pro- 
tection of  the  author,  it  would  be  necessary  that  each  part  should 
be  separately  copyrighted.  This  would  depend  largely  upon  the 
question  w^hether  the  three  months  from  the  publication,  within 
which  the  author  must  deposit  a  copy  of  the  book  with  the  clerk, 
would  run  from  the  publication  of  the  first  or  the  last  number  in 
the  Atlantic  Monthly. 

That  there  was  a  publication  of  the  contents  of  the  book  in 
question,  and  of  the  entire  contents,  is  beyond  dispute.  It  follows 
from  this  that  defendant  might  have  republished  in  another  maga- 
zine these  same  numbers  as  they  originally  appeared  in  the  At- 
lantic Monthly.  He  might  also,  before  the  copyright  was  obtained, 
have  published  them  together,  paged  them  continuously,  and  bound 
them  in  a  volume.  Indeed,  the  learned  counsel  for  the  plaintiff 
admits  that  the  defendant  had  the  right  to  make  copies  of  these 
several  parts,  and  to  sell  them  separately  or  collectively,  but  insists 
that  he  had  no  right  to  combine  them  in  a  single  volume.  The 
distinction  between  publishing  these  parts  collectively  and  publish- 
ing them  in  a  single  volume  appears  to  be  somewhat  shadowy; 
but,  assuming  that  he  had  no  such  right,  it  must  be  because  the 
copyright  protected  the  author,  not  against  the  republishing  of  his 
intellectual  productions  or  "the  order  of  his  words,"  but  against 
the  assembling  of  such  productions  in  a  single  volume.  The  argu- 
ment leads  to  the  conclusion  that  the  whole  is  greater  than  the 
sum  of  all  the  parts — a  principle  inadmissible  in  logic  as  well  as 
in  mathematics.  If  the  several  parts  had  been  once  dedicated  to 
the  public,  and  the  monopoly  of  the  author  thus  abandoned,  we 
do  not  see  how  it  could  be  reclaimed  by  collecting  such  parts 
together  in  the  form  of  a  book,  unless  we  are  to  assume  that  the 
copyright  act  covers  the  process  of  aggregation  as  well  as  that  of 
intellectual  production.    The  contrary  is  the  fact. 

*  *  *  If  an  author  permit  his  intellectual  production  to  be 
published  either  serially  or  collectively,  his  right  to  a  copyright  is 
lost  as  effectually  as  the  right  of  an  inventor  to  a  patent  upon  an 


186  Cases  on  Personal  Property 

invention  which  he  deliberately  abandons  to  the  public,  and  this, 
too,  irrespective  of  his  actual  intention  not  to  make  such  abandon- 
ment. It  is  the  intellectual  production  of  the  author  which  the 
copyright  protects,  and  not  the  particular  form  which  such  pro- 
duction ultimately  takes;  and  the  word  "book,"  as  used  in  the 
statute,  is  not  to  be  understood  in  its  technical  sense  of  a  bound 
volume,  but  any  species  of  publication  which  the  author  selects  to 
embody  his  literary  product.  We  are  quite  unable  to  appreciate 
the  distinction  between  the  publication  of  a  book  and  the  publica- 
tion of  the  contents  of  such  book,  whether  such  contents  be  pub- 
lished piecemeal  or  en  bloc. 

*  *  *  There  is  no  fixed  time  within  which  an  author  must 
apply  for  a  copyright,  so  that  it  be  "before  publication";  and,  if 
the  publication  of  the  parts  serially  be  not  a  publication  of  the 
book,  a  copyright  might  be  obtained  after  the  several  parts,  whether 
published  separately  or  collectively,  had  been  in  general  circulation 
for  years.  Surely,  this  cannot  be  within  the  spirit  of  the  act. 
Under  the  English  copyright  act  of  1845,  provision  is  made  for  the 
publication  of  works  in  a  series  of  books  or  parts,  but  it  has  always 
been  held  that  each  part  of  a  periodical  is  a  book  within  the 
meaning  of  the  act.  Henderson  v.  Maxwell,  4  Ch.  Div.  163 ;  Brad- 
bury V.  Sharp  [1891],  Wkly.  Notes  143. 

We  have  not  overlooked  the  inconvenience  which  our  conclusions 
will  cause,  if,  in  order  to  protect  their  articles  from  piracy,  authors 
are  compelled  to  copyright  each  chapter  or  installment  as  it  may 
appear  in  a  periodical;  nor  the  danger  and  annoyance  it  may 
occasion  to  the  library  of  congress  and  the  Smithsonian  Institution, 
where  copyrighted  articles  are  deposited,  if  they  are  compelled  to 
receive  such  articles  as  they  are  published  in  newspapers  and 
magazines ;  but  these  are  evils  which  can  be  easily  remedied  by  an 
amendment  of  the  law. 

The  infringement  in  this  case  consisted  in  selling  copies  of  the 
several  parts  of  "The  Autocrat  of  the  Breakfast  Table"  as  they 
were  published  in  the  Atlantic  Monthly,  and  each  copy  so  sold  was 
continuously  paged  so  as  to  form  a  single  volume.  Upon  its  title 
page  appeared  a  notice  that  it  was  taken  from  the  Atlantic  Monthly. 
There  can  be  no  doubt  that  the  defendant  had  the  right  to  publish 
the  numbers  separately  as  they  originally  appeared  in  the  Atlantic 
Monthly  (since  those  numbers  were  never  copyrighted),  even  if 
they  were  paged  continuously.  When  reduced  to  its  last  analysis, 
then,  the  infringement  consists  in  binding  them  together  in  a  single 


Patents,  Copyright,  GtOOdwill,,  Trademarks,  Etc.       187 

volume.    For  the  reasons  above  stated,  this  act  is  not  the  legitimate 
subject  of  a  copyright. 

The  decree  of  the  court  below  must  therefore  be  affirmed.^ 


si^ts.-iwi' 


Letters. 
GRIGSBY  et  al.  v.  BRECKENRIDGE. 

65  Ky.  480,  92  Am.  Dec.  509.     1867. 
The  facts  are  stated  in  the  opinion. 

Robertson,  J. — In  its  aim,  its  principles,  and  its  results,  this  is 
a  novel  and  intensely  interesting  litigation. 

Alfred  Shelby  was  the  first,  and  Robert  J.  Breckenridge  the  last 
husband  of  Virginia  Hart,  who  died  on  the  8th  of  jMay,  1859, 
while  she  was  Breckenridge 's  wife.  She  had  carefully  preserved 
a  large  number  of  friendly  and  confidential  letters,  which  she  had 
received  during  her  girlhood,  widowhood,  and  wedded  life.  And, 
as  proved  by  an  answer  to  interrogatories,  made  testimony  by  the 
Code  of  Practice,  she  had,  on  her  death-bed,  given  and  delivered 
them  to  Mrs.  Grigsby,  an  only  daughter  of  the  first  marriage. 
And,  on  the  9th  of  September,  1859,  Breckenridge,  who,  in  the 
meantime,  had  been  appointed  administrator  of  his  deceased  wife's 
chattels,  brought  this  suit  in  equity  against  the  appellants  for 
enjoining  the  publication  of  any  of  the  said  letters,  and  for  com- 
pelling the  surrender  of  all  of  tliem  to  himself. 

His  petition,  without  intimating  that  the  publication  would  affect 
the  memory  of  his  wife,  or  in  any  way  subject  him  to  loss  or  annoy- 
ance, claims  that  he  is  entitled  to  those  letters,  either  as  admin- 
istrator or  surviving  husband;  and  nowhere,  as  mere  author,  does 
he  claim  the  possession  of  the  letters  written  by  himself.     *     *     * 

The  revision  of  that  judgment  involves  interesting  considerations 
of  principle,  analogy,  and  policy. 

As  the  judgment  excludes  letters  received  before  the  last  mar- 
riage, except  those  \\T:*itten  by  the  last  husband,  and  includes  all 
letters  received  during  that  marriage,  the  circuit  judge  did  not 
consider  the  appellee's  authorship  the  sole  test  of  his  right,  but 
must  have  thought  that,  either  as  administrator  or  husband,  he 

6  See  Childs'  Personal  Property,  §  P6. 


188  Cases  on  Personam.  Property 

was  .entitled  to  relief  as  to  all  letters  received  by  his  wife  from 
others  as  well  as  himself  while  she  was  his  wife.  And  even  on  this 
hypothesis,  the  judgment  is  unreasonable  and  inconsistent;  for,  if 
any  of  her  letters  passed  to  him  either  as  administrator  or  husband, 
the  right  so  devolved  on  him  only  because  she  had  some  special 
property  in  them  as  her  OAvn ;  and  having  the  same  title  to  all  her 
letters,  whenever  and  from  whomsoever  received,  he  had,  as  admin- 
istrator and  husband,  precisely  the  same  right  to  all,  and  therefore 
to  those  received  from  her  first  husband  and  other  friends  before 
her  last  marriage.  All  the  letters,  including  those  written  by  the 
appellee  before  and  during  his  intermarriage  with  Virginia  Shelby, 
are  described  in  his  petition  as  merely  friendly  and  confidential 
communications  containing  nothing  which  could,  if  published,  affect 
his  interest  or  his  character.  There  is  property  in  even  such  letters. 
By  sending  them,  the  authors  parted  with  their  right  to  the  pos- 
session, control,  or  reclamation  of  them  without  her  consent,  and 
gave  her  the  exclusive  right  to  read  and  keep  them  for  their  en- 
during memories  and  sentiments. 

This  was  /ler  property,  which  might  have  been  peculiarly  valu- 
able if  estimated  by  only  affectionis  pretium,  often  exceeding  the 
cash  value.  The  authors  also  retained  a  qualified  property  in 
their  contents  which  they  alone  had  the  right  to  publish  for  their 
own  benefit ;  and  therefore,  and  also  because  they  reflected  their 
emotions  and  sentiments,  they  had  the  right  to  enjoin  publication 
by  the  recipient  or  any  other  person.  This  was  the  autlior's  prop- 
erty to  its  full  extent. 

These  correlative  rights  of  property  are  now  established  by 
abundant  authority,  fortified  by  principle  and  analogy. 

The  ancient  common  law  recognized  the  exclusive  right  of  the 
author  of  a  literary  manuscript  to  publish  it  for  his  own  profit. 
That  venerable  code  being  silent  as  to  private  letters,  it  was  long 
a  debatable  and  controverted  question  whether  the  same  principle 
applied  to  them,  and  defined  this  reciprocal  right  of  author  and 
recipient.  But,  as  such  a  manuscript  may  possess  literary  merits 
worthy  of  publication,  and  the  author  should  have  the  right  to 
decide  for  himself  whether  the  publication  would  be  useful  to 
the  public  and  profitable  to  himself,  and  as  the  letter,  whether 
literary  or  not,  is  a  transcript  of  his  own  mind,  the  modem  com- 
mon law,  moulded  by  the  power  of  adaptation  and  expansion, 
seems  now  to  be  identical  with  the  ancient,  and  applies  the  same 
doctrines  to  private  letters — the  same  reasons,  when  sifted  and 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       189 

expanded,  apparently  applying  to  each  class  of  manuscripts  equally 
and  alike. 

A  production  of  the  mind  is  property  in  every  essential  sense  in 
which  a  production  of  the  hands  is  the  producer's  property.  And 
consequently  in  England,  the  mother  of  the  common  law,  all  her 
jurists  and  courts  have  long  recognized  the  exclusive  right  of  the 
author  to  publish  his  own  literary  manuscript ;  and,  as  it  is  a  reflex 
of  his  own  mind,  and  the  publication  of  it  may  be  profitable,  the 
same  authorities  treat  the  right  to  publish  as  his  property  to  that 
extent.  But,  as  ordinary  letters  of  friendship,  or  on  business,  may 
not  be  fit  for  profitable  publication,  many  jurists  and  judges, 
ancient  and  modern,  have  denied  that  their  authors,  after  deliverj^, 
have  any  property  in  them,  and  adjudged  the  entire  property  to 
be  in  the  recipient.  Nevertheless,  the  modem  common  law,  as 
expounded  by  preponderating  authority,  seems  to  recognize  the 
author's  right  to  publish  even  such  letters  as  his  property  to  the 
extent  of  that  right,  which  he  may  protect  by  injunction  against 
piracy  or  intrusion.     (Cites  eases.)     *     *     * 

Story,  in  second  volume  of  the  Commentaries,  section  948,  says : 
"The  only  ground  upon  which  jurisdiction  has  been  maintained 
is  a  right  of  property,  literary  or  otherwise,  in  the  writer  of  the 
letter."  To  the  same  effect  are  the  American  eases  of  Wetmore  v. 
Scovill,  3  Edward's  Chy.  Rep.  315,  and  Hoyt  v.  McKenzie,  2 
Barbour's  Chy.  Rep.  320. 

A  majority  of  the  American  cases  even  deny  the  right  of  the 
author  to  enjoin  the  publication  of  a  private  letter  on  the  ground 
of  property.  But,  as  before  suggested,  we  incline  to  the  conclusion 
that  the  weight  of  authority,  fortified  by  analogy,  preponderates 
in  favor  of  the  author's  special  property  in  the  publication,  and 
in  his  consequential  right  to  publish  if  he  leep  or  can  procure  a 
copy.  But  the  recipient  is  not  haiind  to  keep  the  original  for  his 
transcriptian,  inspectio-n,  or  other  use.  There  is  no  adjudged,  case 
or  elementary  dictum  extending  the  author's  right  of  property 
heyonid  this  circumscribed  and  contingent  range.  And  all  the  cases 
cited  in  this  case  thus  limit  and  define  it. 

Publication  by  the  author  is  circulation  before  the  public  eye 
by  printing  or  multiplied  copies  in  writing.  The  like  publicity 
by  the  act  of  the  recipient  would  be  an  infringement  of  the  author's 
exclusive  right,  which  he  may  prevent  by  injunction.  Publication 
is  the  same  thing  in  kind,  whether  by  the  author  or  the  recipient, 
and  consequently  the  recipient  may  read  the  letters  to  a  friend 
or  deposit  them  for  .safe-keeping  without  violating  the  author's 
right  of  publication.     *     *     • 


190  Cases  on  Personal  Property 

Consequently,  as  the  author's  right  to  this  kind  of  publication  of 
a  letter  is  the  only  property  which  may  be  protected  by  injunc- 
tion, the  recipient  may  rightfully  make  any  use  of  the  letter  whieh 
will  not,  in  the  same  sense,  amount  to  publication,  without  vio- 
lating the  author's  exclusive  right  or  entitling  him  to  enjoin  such 
lawful  and  consistent  use.     *     *     * 

It  seems  to  us,  therefore,  as  a  necessary  consequence  of  the  fore- 
going principles  and  authorities,  that  the  appellee's  wife,  when 
she  was  about  to  die,  and  could  not,  by  her  own  custody,  preserve 
her  letters  any  longer,  had  a  right  to  secure  their  continued 
preservation  and  enjoyment  by  a  gift  and  delivery  of  them  to  her 
own  daughter,  to  keep  and  enjoy,  and  whom  she  seemed  to  prefer 
to  her  surviving  husband  as  the  custodian  of  a  deposit  so  conse- 
crated by  her  feelings  and  long  possession  and  usufruct  witTi  his 
acquiescence  in  her  asserted  right  until  after  her  death.  And, 
by  that  solemn  transfer  and  sacred  trust,  she  passed  all  her  own 
right  as  separate  property  in  perpetuity.  Consequently,  none  of 
those  letters,  after  that  irrevocable  alienation,  constituted  any  por- 
tion of  her  intestate  estate,  which,  if  they  could  have  been  appre- 
ciable as  assets,  could  have  passed  to  the  appellee  as  her  adminis- 
trator.    *     *     * 

"We  are  therefore  of  the  opinion  that,  while  the  appellee  was 
entitled  to  an  injunction  against  the  publication  of  the  letters 
written  by  himself  to  his  wife,  he  was  entitled  to  none  to  prevent 
the  publication  of  any  of  her  other  letters;  and  we  are  of  the 
opinion,  also,  that  he  was  not  entitled  to  a  judgment  for  a  sur- 
render of  any  of  her  letters. 

Wherefore,  the  judgment  is  reversed,  and  the  cause  remanded, 
with  instructions  to  enjoin  the  publication  of  the  letters  of  which 
the  appellee  was  author,  and  to  dismiss  the  petition  as  to  all  else.'^ 
[Judge  AVnxiAMS  dissents.] 


V 

Infringement. 

SANBORN  MAP  &  PUBLISHING  CO.  v.  DAKIN  PUB.  CO.  et  al. 

39  Fed.  266.     1889. 

The  facts  are  stated  in  the  opinion. 

Sawyer,  J.   (orally). — This  is  a  suit  for  the  infringement  of  a 
copyright  of  a  map  showing  the  improvements  on  property  and  on 
7  See  Childs'  Personal  Property,  §§  87,  144. 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       191 

the  surrounding  property  as  affecting  the  risks  for  the  benefit  of 
lire  insurance  companies,  so  that  they  can  have  the  map  at  hand 
in  their  ofSces,  and  know  the  character  of  their  risks,  which  are 
noted  on  the  map.  This  map  is  copyrighted  by  the  Sanborn  Map 
&  Publishing  Company.  That  company  sold  a  copy  of  its  map,  or 
book  of  maps,  I  should  say  (each  page  covers  one  or  more  blocks), 
to  Hutchinson  &  Mann.  Hutchinson  &  Mann  made  corrections  on 
it,  as  the  risks  changed  from  time  to  time,  and  they  procured  (the 
defendant)  the  Dakin  Publishing  Company  to  go  over  the  field, 
note  the  changes,  and  make  the  corrections  on  the  map.  That 
company  made  the  corrections  by  putting  on  pasters,  showing  the 
changes  made,  on  the  map  which  Hutchinson  &  Mann  had  pur- 
chased from  the  Sanborn  Map  &  Publishing  Company,  and  often 
by  retracing  and  reproducing  portions  not  changed  by  pasters.  It 
is  claimed  that  defendants,  at  the  request  of  Hutchinson  &  Mann, 
had  a  right  to  do  that.  The  owners  certainly  had  a  right  to  do 
anything  they  pleased  with  the  map  purchased  from  complainant 
so  far  as  making  changes  and  putting  on  pasters  is  concerned; 
but  they  did  more  than  that.  They  reproduced  portions  of  the 
map,  sometimes  nearly  a  whole  sheet.  When  the  corrections  were 
so  many  that  they  found  it  cheaper  and  better  to  make  out  a 
sheet  than  to  make  corrections  on  it  by  pasters  in  the  book,  they 
did  so,  and  then  relithographed  it,  and  reproduced  the  page,  multi- 
plying the  copies,  and  often,  doubtless,  supplying  the  copies  to 
other  companies  having  complainant's  maps  or  book  of  maps. 
While  they  had  a  right  to  put  on  pasters,  cut  the  map  to  pieces, 
and  destroy  it,  they  had  no  right  to  retrace  or  reproduce  and 
multiply  any  material  part  of  the  map.  In  some  instances  they 
took  whole  sheets,  made  several  changes  in  them,  relithographed 
those  sheets  so  amended,  and  used  them  and  doubtless  furnished 
them  to  others  to  use.  If  they  can  do  that  on  one  sheet,  they  can 
do  it  on  two,  three,  or  four,  and  finally  reproduce  the  whole  book, 
availing  themselves  of  the  plaintiff's  works  as  to  all  except  the 
changes.  If  they  cafi  reproduce  it  once,  they  can  do  it  a  dozen 
times.  If  they  can  do  it  for  one  man  they  can  do  it  for  every 
insurance  company,  and  multiply  the  work  indefinitely  to  the 
great  injury  of  the  owner  of  the  copyright.  In  my  judgment  the 
reproduction,  the  retracing,  or  relithographing  of  any  material  part 
of  the  map  is  an  infringement  of  the  copyright.  To  the  extent  of 
the  reproduction  of  complainant's  work,  defendants  are  liable  for 
an  infringement,  and  there  must  be  a  decree  restraining  them  from 
so  infringing.    There  will  be  a  reference  to  the  standing  master  to 


192  Cases  on  Personal  Property 

ascertain  the  profits  in  pursuance  of  these  suggestions.  It  is  an 
infringement  to  retrace  or  reproduce  any  material  portion  of  the 
map.  The  mere  putting  on  of  the  pasters  and  destroying  the  sheet, 
without  reproducing  any  part  of  it,  I  do  not  think  is  an  infringe- 
ment. An  accounting  will  be  taken  in  accordance  with  that 
principle.^ 


J 


Motion  Picture, 
HARPER  &  BROS,  et  al  v.  KALEM  CO.  et  al. 
169  Fed.  61.     1909. 
The  facts  are  stated  in  the  opinion. 

Ward,  Circuit  Judge. — The  late  Gen.  Lew  Wallace  wrote  a  story 
called  "Ben  Hur, "  the  copyright  of  which. belongs  to  the  complain- 
ants Harper  &  Bros.  The  complainants  Klaw  &  Erlanger  caused 
the  story  to  be  dramatized,  and  Harper  &  Bros,  duly  copyrighted 
the  dramatization  and  thereupon  granted  Klaw  &  Erlanger  the 
sole  right  of  producing  the  same  upon  the  stage.  The  defendant 
the  Kalem  Company  also  employed  a  writer  to  read  the  story,  with- 
out having  any  knowledge  of  the  copyrighted  drama,  and  to  write 
a  description  of  certain  portions  of  it.  It  then  produced  persons 
and  animals,  with  their  accoutrements,  to  perform  the  actions  and 
motions  so  described.  During  this  performance  a  film  celluloid 
was  rapidly  moved  across  the  lens  of  a  high-speed  camera,  on 
which  a  series  of  negative  photographs  were  taken,  from  which 
a  positive  film  suitable  for  exhibition  purposes  was  reproduced. 
These  positive  photographs  were  contained  on  one  film,  about  1,000 
feet  long,  which,  being  driven  at  great  speed  across  the  lens  of  an 
exhibiting  machine,  projects  all  the  motions  of  the  original  actors 
and  animals  in  succession  upon  a  screen.  The  defendant  adver- 
tised this  film  as  suitable  for  giving  public  exhibitions  of  the  story 
of  Ben  Hur,  and  sent  advertisements  to,  among  other  persons, 
proprietors  of  theatoriums.  At  least  500  exhibitions  have  been 
given  in  such  theatoriums,  an  entrance  fee  being  charged.  The 
defendant  did  not  reproduce  the  whole  story,  but  only  certain  of 
the  more  prominent  scenes,  such  as  the  wounding  of  the  Roman 
procurator,  Ben  Hur  in  the  gaUeys,  the  chariot  race,  and  othera 

8  See  Childs '  Personal  Property,  §  93. 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       193 

It  does  not  itself  give  any  public  or  private  exhibitions,  but  simply 
sells  or  licenses  the  use  of  the  films.  A  final  decree  granting  a 
perpetual  injunction  was  entered  in  the  court  below,  from  which 
this  appeal  is  taken. 

Section  4952,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p.  3406), 
gives  the  author  of  a  book,  and  his  assigns,  not  only  the  sole  right 
of  printing,  but  also  the  sole  right  of  dramatizing  it,  and  in  case 
of  a  dramatic  composition  the  sole  right  of  performing  or  repre- 
senting it  publicly.  Section  4964  (page  3413)  subjects  any  one 
who  shall  dramatize  a  copyrighted  book  without  the  written  con- 
sent of  the  proprietor  to  the  payment  of  damages.  Section  4966 
(page  3415)  provides  that  any  one  who  publicly  performs  or 
represents  a  copyrighted  dramatic  composition  without  the  owner's 
consent  shall  be  liable  for  damages  not  less  than  $100  for  the  first 
and  $50  for  every  subsequent  performance,  and  if  his  conduct  be 
willful  and  for  profit  he  shall  also  on  conviction  be  imprisoned  for 
not  exceeding  one  year. 

Two  questions  are  raised;  First.  Did  the  defendant,  by  taking 
this  series  of  photographs,  dramatize  Ben  Hur,  in  violation  of 
Harper  &  Bros.'  sole  right  to  dramatize  the  book  under  section 
4952?  Second.  Is  the  exhibition  of  these  photographs  by  means 
of  an  exhibiting  machine  in  theatoriums,  where  an  entrance  fee 
is  charged,  a  public  performance  or  representation  of  a  dramatic 
composition,  in  violation  of  the  rights  of  Harper  &  Bros.,  as  owners 
of  the  copyright  of  the  book  and  of  the  dramatic  composition,  and 
of  the  rights  of  Klaw  &  Erlanger,  as  owners  of  the  performing 
right,  under  section  4966?  There  may  be  several  dramatizations 
of  the  same  story,  each  capable  of  being  copyrighted.  Harper  & 
Bros.,  having  given  Klaw  &  Erlanger  the  sole  right  of  performing 
the  particular  copyrighted  drama,  can  give  some  one  else  the  sole 
right  of  performing  a  different  dramatic  composition  of  the  story 
(Drone  on  Copyright,  p.  597)  ;  whereas,  Klaw  &  Erlanger,  who 
are  the  owners  only  of  the  right  publicly  to  perform  the  particular 
copyrighted  drama,  have  no  right  to  make  another  dramatization. 
Consequently  infringing  the  copyrighted  drama  is  a  different  thing 
from  infringing  the  owner's  right  to  dramatize  the  copyrighted 
book. 

Answering  the  first  question :  The  series  of  photographs  taken 
by  the  defendant  constitutes  a  single  picture,  capable  of  copyright 
as  such  (Edison  v.  Lubin,  122  Fed.  240,  58  C.  C.  A.  604;  American 
Mutoscope  Co.  v.  Edison  [C.  C]  137  Fed.  262)  ;'  and  as  pictures 
only  represent  the  artist's  idea  of  what  the  author  has  expressed 
C.  P.  P.— 13 


194  Cases  on  Personal  Property 

in  words  (Parton  v.  Prang,  3  Cliff  537,  Fed.  Cas.  No.  10,784), 
they  do  not  infringe  a  copyrighted  book  or  drama,  and  should  not 
as  a  photograph  be  enjoined.  This  distinction  between  infringe- 
ment of  a  copyright  of  a  book  and  of  the  performing  rights  is  like 
the  distinction  in  respect  to  an  infringement  between  perforated 
music  rolls  and  sheet  music  discussed  in  the  case  of  "White-Smith 
Co.  V.  Apollo  Co.,  209  U.  S.  1,  28  Sup.  Ct.  319,  52  L.  Ed.  655, 
where  the  court  said : 

"There  is  no  complaint  in  this  case  of  the  public  performances 
of  copyrighted  music,  nor  is  the  question  involved  whether  the 
manufacturers  of  such  perforated  music  rolls,  when  sold  for  use  in 
public  performances,  might  be  held  as  contributory  infringers." 

Coming  now  to  the  second  question :  "When  the  film  is  put  on  an 
exhibiting  machine,  which  reproduces  the  action  of  the  actors  and 
animals,  we  think  it  does  become  a  dramatization,  and  infringes  the 
exclusive  right  of  the  owner  of  the  copyrighted  book  to  dramatize 
it,  as  well  as  his  right  as  owner  of  the  copyrighted  drama,  and 
of  Klaw  &  Erlanger's  right  as  owners  of  the  performing  right 
publicly  to  produce  it.  In  other  words,  the  artist's  idea  of  describ- 
ing by  action  the  story  the  author  has  written  in  words  is  a 
dramatization.  It  is  not  necessary  that  there  should  be  both 
speech  and  action  in  dramatic  performances,  although  dialogue 
and  action  usually  characterizes  them.  Judge  Blatchford  said  on 
this  point,  in  Daly  v.  Palmer,  6  Blatchf.  256,  Fed.  Cas.  No.  3,552 : 

"To  act,  in  the  sense  of  the  statute,  is  to  represent  as  real,  by 
countenance,  voice,  or  gesture,  that  which  is  not  real.  A  character 
in  a  play  who  goes  through  with  a  series  of  events  on  the  stage 
without  speaking — if  such  be  his  part  of  the  play — is  none  the  less 
an  actor  in  it  than  one  who,  in  addition  to  motions  and  gestures, 
uses  his  voice.  A  pantomime  is  a  species  of  theatrical  entertain- 
ment, in  which  the  whole  action  is  represented  by  gesticulation, 
without  the  use  of  words. ' ' 

And  this  court,  in  the  case  of  Daly  v.  Webster,  56  Fed.  483, 
4C.  C.  A.  10,  said: 

"Upon  the  main  point  of  the  case,  namely,  whether  the  com- 
bination or  series  of  dramatic  events  (apart  from  the  dialogue) 
which  makes  up  the  particular  scene  or  portion  of  the  play  claimed 
to  be  infringed  is  a  dramatic  composition,  and  as  such  entitled  to 
protection  under  the  copyright  laws,  it  is  necessary  to  add  but 
little  to  the  exhaustive  opinion  of  Judge  Blatchford,  reported  in 
Daly  V.  Palmer,  6  Blatchf.  256,  Fed.  Cas.  No.  3,552.  The  same 
scene  in  the  same  play  is  elaborately  discussed  by  him,  and  in  his 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       195 

conclusion  that  it  is  a  dramatic  composition  we  concur.  In  plays 
of  this  class  the  series  of  events  is  the  only  composition  of  any 
importance.  *  *  *  Such  a  composition,  though  its  success  is 
largely  dependent  upon  what  is  seen,  irrespective  of  the  dialogue, 
is  dramatic.  It  tells  a  story  which  is  quite  as  intelligible  to  the 
spectator  as  if  it  had  been  presented  to  him  in  a  written  narrative." 
It  can  hardly  be  doubted  that,  if  the  story  were  acted  without 
dialogue,  the  performance  would  be  a  dramatization  of  the  book; 
and  we  think  that,  if  the  motions  of  the  actors  and  animals  were 
reproduced  by  moving  pictures,  this  would  be  only  another  form 
of  dramatization.  If  the  defendant  had  taken  a  series  of  moving 
pictures  of  the  play  as  actually  performed  by  Klaw  &  Erlanger, 
the  exhibition  of  them  would  certainly  be  an  infringement  of  the 
dramatic  composition,  because  it  would  tell  the  story  as  they  tell 
it,  within  the  decision  of  Daly  v.  Palmer  and  Daly  v.  Webster, 
supra. 

Finally,  the  defendant  relies  upon  section  8,  article  1,  of  the 
Constitution,  that  Congress  shall  have  the  power  "to  promote  the 
progress  of  science  and  useful  arts  by  securing  for  limited  times  to 
authors  and  inventors  the  exclusive  right  to  their  respective  writings 
and  discoveries."     It  is  argued  from  this  that,  as  these  moving 
pictures  only  express  the  artist's  conception  of  the  author's  ideas 
as  expressed  in  the  words  of  the  copyrighted  book  or  dramatic 
composition,  they  cannot  be  said  to  infringe  the  author's  rights. 
But  the  history  of  the  copyright  law  does  not  justify  so  narrow 
a  construction  of  the  word  ''writings."    The  first  copyright  law  of 
1790  (Act  May  31,  1790,  c.  15,  1  Stat.  124),  included  maps  and 
charts  as  well  as  books.     In  1802   (Act  April  29,  1802,  c.  36,  2 
Stat.  171)    copyright  was  extended  to  engravings,  etchings,  and 
prints.     In  1856  (Act  Aug.  18,  1856,  c.  169,  11  Stat.  138)  it  was 
extended  in  the  case  of  copyrighted  dramatic  compositions  to  the 
right  of  publicly  performing  the  same.    In  1870  (Act  July  8,  1870, 
c.   230,   16   Stat.   212)    it  was  extended   to   paintings,   drawings, 
ehromos,  statues,  models,  designs,  photographs,  and  the  negatives 
thereof,   and  authors  were  also  allowed   to  reserve   the   right   to 
dramatize  their  works.     In  1891    (section  4952,  Rev.  St.  U.  S.) 
authors  and  their  assigns  were  given  the  exclusive  right  to  drama- 
tize their  copyrighted  Avorks,    The  construction  of  the  word  "writ- 
ings" to  cover  these  various  forms  of  expression,  and  also  to  cover 
the  right  of  giving  public  performances,  has  been  acquiesced  in 
for  over  50  years.     In  view  of  this  fact,  we  have  no  difficulty  in 
concluding  that  moving  pictures  would  be  a  form  of  expression 


196  Cases  on  Personal.  Property 

infringing  not  the  copyrighted  book  or  drama,  but  infringing  the 
author's  exclusive  right  to  dramatize  his  writings  and  publicly  to 
perform  such  dramatization. 

Decree  affirmed.^ 


v 


Goodwill 
HAUGEN  et  al.  v.  SUNDSETH  et  al. 
106  Minn.  129,  118  N.  W.  66,6.     1908. 
The  facts  are  stated  in  the  opinion. 

Brown,  J. — This  action  was  brought  to  restrain  and  enjoin 
defendants  from  engaging  in  or  conducting  a  retail  furniture  and 
undertaking  business  in  the  city  of  Minneapolis,  and  for  other 
relief.  Plaintiff  moved  the  court  for  the  issuance  of  a  temporary- 
injunction  pending  the  suit,  which,  after  hearing,  was  granted  as 
to  defendant  Sundseth,  but  denied  as  to  defendant  Sundseth  Fur- 
niture &  Undertaking  Company.    Defendant  Sundseth  appealed. 

The  facts  are  as  follows:  On  July  5,  1905,  defendant  Sundseth 
was,  and  for  some  time  prior  thereto  had  been,  engaged  in  con- 
ducting the  business  of  a  retail  dealer  in  furniture  and  under- 
taking in  the  city  of  Minneapolis.  He  had  established  a  large  and 
profitable  trade,  and  was  successfully  carrying  it  on.  On  the  day 
stated,  after  some  negotiations,  he  sold  out  his  business  to  Haugen 
&  Meier,  a  copartnership  composed  of  Thomas  Haugen  and  John 
Meier,  for  the  consideration  in  round  numbers  of  $7,000  in  money 
and  the  execution  by  Sundseth  of  the  following  contract,  by  which 
he  transferred  to  his  grantees  the  good  will  to  the  business  and 
agreed  not  to  enter  into  the  same  in  said  city  for  the  term  of 
five  years  thereafter:  "This  agreement,  made  this  10th  day  of 
July,  1905,  by  and  between  Thomas  A.  Haugen  and  John  Meier, 
co-partners  as  Haugen*  and  Meier,  parties  of  the  first  part,  and 
Andrew  Sundseth,  party  of  the  second  part,  witnesseth :  'Whereas 
the  said  parties  of  the  first  part  have  taken  and  purchased  from 
the  party  of  the  second  part  the  business  and  store  of  said  second 
party  in  the  city  of  Minneapolis,  which  said  business  includes  the 
business  of  retailing  furniture,  house  furnishings,  stoves  and 
ranges ;  and  also  general  undertaking  and  embalming  business ;  and 
also  including  the  good  will  of  said  second  party,  in  the  said  city 

»  See  Childs '  Personal  Property,  §  93. 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       197 

of  Minneapolis,  in  connection  with  said  business ;  and  whereas  said 
first  parties  wish  to  protect  the  interest  of  said  copartnership,  in 
the  conduct  of  said  business,  now  therefore,  as  a  part  of  the  con- 
sideration of  said  purchase  and  sale,  the  said  second  party  hereby 
agrees  to  and  with  the  first  parties  that  he  will  not  engage  in  the 
business  of  selling  or  retailing  furniture,  or  house  furnishings, 
stoves  and  ranges ;  or  in  the  business  of  undertaking  or  embalming, 
either  directly  or  indirectly,  in  the  city  of  Minneapolis  for  a  period 
of  five  (5)  years  from  the  date  of  this  contract;  that  he  will 
not  own  or  control  any  stock  in  any  corporation  engaged  in  said 
business,  and  will  not  become  interested  in  any  copartnership 
engaged  in  said  business  during  a  period  of  said  five  (5)  years, 
and  will  not  become  an  employee  of  any  copartnership,  corpora- 
tion or  indi"vadual  engaged  in  said  business  at  any  time  during 
said  period  of  five  (5)  years;  or  will  not  give  or  lend  his  influence, 
either  directly  or  indirectly  to  the  support  or  promotion  of  said 
business.'  The  term  'said  business'  shall  include  the  business  or 
businesses  herein  above  described,  and  all  lines  of  business  usually 
carried  on  in  connection  therewith.  [Signed]  A.  Sundseth."  The 
transaction  was  completed  on  the  10th  of  July,  1905,  and  Haugen 
&  ]\reier  then  took  possession  of  the  business,  and  thereafter  man- 
aged and  conducted  it  until  some  time  in  March,  1906,  when  the 
firm  was  dissolved,  and  the  business,  including  all  rights  under 
the  contract  above  set  out,  sold  to  the  plaintifi^s  herein,  a  copartner- 
ship composed  of  Tollef  K.  Haugen  and  John  Meier,  under  the 
firm  name  of  Haugen  &  Meier  Company.  Thereafter  the  defend- 
ant Sundseth  Furniture  &  Undertaking  Company  was  organized 
and  opened  up  a  furniture  and  undertaking  business  in  the  neigh- 
borhood of  the  old  stand  occupied  by  defendant  Sundseth  prior 
to  the  sale  to  Haugen  &  Meier.  Plaintifi^s  allege  that  this  new 
concern  was  organized  by  defendant  Sundseth  using  the  name  of 
his  Avife,  and  that  he  has  controlled  and  conducted  the  same  since 
its  organization  in  his  own  interest  and  in  violation  of  the  contract 
under  which  he  sold  the  good  will  of  the  business  to  Haugen  & 
Meier,  After  the  formation  of  that  corporation,  this  action  was 
brought  by  plaintiffs,  successors  of  Haugen  &  Meier,  to  restrain 
both  defendant  Sundseth  and  the  Sundseth  Furniture  &  Under- 
taking Company  from  continuing  in  said  business  in  violation  of 
the  said  contract.  The  application  for  the  temporary  injunction 
was  submitted  to  the  trial  court  upon  the  pleadings  and  affidavits 
which  present  numerous  issues  or  questions  of  fact. 

Several  questions  are  discussed  in  the  briefs  of  counsel,  only  one 


198  Cases  on  PEESONiVi.  Property 

of  whicli  requires  special  mention.  By  the  action  of  the  court  in 
granting  a  temporary  injunction  against  defendant  Sundseth,  it 
must  be  taken  that  the  issues  of  fact  presented  by  the  pleadings 
and  affidavits  were  resolved  in  favor  of  plaintiffs.  That  conclusion 
cannot  be  disturbed  on  this  appeal;  the  showing  made  by  defend- 
ants not  being  clearly  against  the  view  taken  by  the  trial  court. 
*  *  *  So  we  come  directly  to  the  principal  question  involved, 
viz.,  whether  defendant's  contract  and  agreement  not  to  enter 
again  into  the  furniture  business  for  a  period  of  five  years  was 
assignable  and  passed  by  the  dissolution  of  the  firm  of  Haugen  & 
Meier  and  the  sale  and  transfer  to  the  new  firm.  The  only  change 
in  the  copartnership  was  the  retirement  of  Thomas  A  Haugen, 
he  having  sold  his  interest  to  Tollef  K. 

It  is  insisted  by  defendant  Sundseth  that  the  rights  of  Haugen 
&  Meier  in  and  to  the  good  will  of  this  business  did  not  pass  to 
the  new  copartnership,  for  the  reason  that  it  was  personal  to  the 
old  firm  so  long  as  they  should  continue  to  conduct  the  business, 
and  was  not  assignable  by  them  to  other  persons.  "We  are  unable 
to  concur  in  this  view  of  the  question.  The  good  will  of  a  business 
is  the  favor  won  from  the  public  and  the  probability  that  old 
customers  will  continue  their  patronage.  It  is  an  advantage  and 
benefit  that  is  acquired  by  business  establishments  beyond  the 
value  of  the  money  or  property  invested  therein,  and  is  "prop- 
erty" in  the  legal  sense  of  the  term,  and  subject  to  sale 
and  transfer  in  conjunction  with  a  sale  of  the  business,  pre- 
cisely as  other  personalty.  Bradford  v.  Montgomery,  115  Tenn. 
610,  92  S.  W.  1104,  9  L.  R.  A.  (N.  S.)  979;  Williams  v.  Wilson, 
4  Sandf.  Ch.  (N.  Y.)  379;  Musselman's  Appeal,  62  Pa.  81,  1  Am. 
Rep.  382 ;  Hitchcock  v.  Coker,  6  Ad.  &  El.  438 ;  Pearson  v.  Pearson, 
L.  R.  27  Ch.  Div.  145 ;  19  Cen.  L.  J.  362.  In  the  case  at  bar  the 
good  will  was  sold  by  Sundseth  to  the  old  firm  of  Haugen  &  Meier, 
and  if  subject  to  sale  as  an  article  of  property  and  as  an  incident 
of  the  business  to  which  it  is  attached,  it  is  equally  assignable  by 
the  purchaser,  and  the  new  firm  acquired  a  good  title.  Tuttle  v. 
Howe,  14  Minn.  145  (Gil.  113),  100  Am.  Dec.  205.  The  fact  that 
the  contract  in  question  did  not  run  to  Haugen  &  Meier  "and  their 
successors  and  assigns"  does  not  affect  the  question  in  the  least. 
While  perhaps  the  use  of  those  words  or  their  equivalent  may  in 
instances  be  essential  to  confer  the  right  of  alienation  in  the 
grantee,  their  use  is  wholly  unnecessary  in  a  case  like  that  at  bar. 
But  specific  property  or  substantial  property  rights  which  survive 
to  an  executor  or  administrator — in  which  classification  good  will. 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       199 

trade-marks,  and  trade-names  mast  be  included — may  be  trans- 
ferred from  person  to  person  where  an  indefeasible  title  passes 
from  the  original  owner  without  reference  to  the  language  of  the 
different  transfers.  In  other  words,  an  unconditional  sale  of  spe- 
cific property  to  A.  passes  an  indefeasible  title  and  empowers  him 
to  sell  and  transfer  to  B.,  whether  the  original  muniment  of  title 
ran  to  A.  and  his  heirs  and  assigns  or  not.  The  rule  applies  to 
sales  of  good  will.  Fleckenstein  Bros.  v.  Fleckenstein,  66  N.  J. 
Eq.  252,  53  Atl.  1043 ;  Swarts  v.  Narrangansett  Co.,  26  R.  I.  436, 
59  Atl.  Ill;  Salem  Mill  Co.  v.  Slayton,  etc.  (C.  C),  33  Fed.  146; 
Sheppard  v.  Stites,  7  N.  J.  Law  91, 

Nor  was  the  good  will  in  the  case  at  bar  limited  by  the  contract, 
properly  construed,  to  the  original  grantees  Haugen  &  Meier,  but, 
on  the  contrary,  was  attached  to  and  an  incident  to  the  business 
transferred  and  passed  to  the  new  firm.  Pease  v.  Rush,  2  Minn. 
107  (Gil.  89)  ;  Wilmer  v.  Thomas,  74  Md.  485,  22  Atl.  403,  13 
L.  R.  A.  380,  and  note.  Of  course,  rights  purely  personal,  which 
die  with  the  person,  cannot  be  assigned  no  matter  how  acquired. 
But  all  contracts  are  to  be  construed  in  the  light  of  the  rules  and 
principles  of  law  applicable  to  the  subject-matter  of  the  trans- 
action, and  the  rights  and  obligations  of  the  parties  are  controlled 
by  those  rules,  except  where  the  written  contract  discloses  an  in- 
tention to  depart  therefrom.  As  applicable  to  the  transaction  here 
before  us,  the  good  will  of  the  Sundseth  business  must  be  taken 
to  have  been  dealt  with  by  the  parties  in  the  light  of  the  principles 
of  law  governing  rights  and  interests  of  this  character,  and  the 
contract,  properly  construed,  does  not  justify  the  conclusion  that 
the  parties  intended  to  extend  a  mere  personal  privilege  to  the  old 
firm  of  Haugen  &  Meier. 


Trademark — Nature  of.         -^ 

UNITED  STATES  v.  STEFFENS. 

(Tivo  other  cases.) 

100  U.  S.  82,  25  L.  Ed.  550.     1879. 

The  facts  are  stated  in  the  opinion. 

Mr.  Justice  ]\Iil,ler. — The  three  cases  whose  titles  stand  at  the 
head  of  this  opinion  are  criminal  prosecutions  for  violations  of 
10  See  Childs'  Personal  Property,  §95. 


200  Cases  on  Personal  Property 

what  is  known  as  the  trademark  legislation  of  Congress.  *  *  * 
In  all  of  them  the  judges  of  the  circuit  courts  in  which  they  are 
pending  have  certified  to  a  difference  of  opinion  on  what  is  sub- 
stantially the  same  question,  namely :  Are  the  acts  of  Congress  on 
the  subject  of  trade-marks  founded  on  any  rightful  authority  in  the 
Constitution  of  the  United  States? 

The  entire  legislation  of  Congress  in  regard  to  trade-marks  is 
of  very  recent  origin.  It  is  first  seen  in  sections  77  to  84,  inclusive, 
of  the  Act  of  July  8,  1870,  16  Stat,  at  L.  198,  entitled  "An  Act 
to  Revise,  Consolidate  and  Amend  the  Statutes  Relating  to  Patents 
and  Copyrights."     *     *     * 

It  is  sufficient  at  present  to  say  that  they  provide  for  the 
registration,  in  the  Patent  Office,  of  any  device  in  the  nature  of  a 
trade-mark  to  which  any  person  has,  by  usage,  established  an  ex- 
clusive right,  or  which  the  person  so  registering  intends  to  appro- 
priate by  that  act  to  his  exclusive  use ;  and  they  make  the  wrong- 
ful use  of  a  trade-mark,  so  registered,  by  any  other  person,  without 
the  owner's  permission,  a  cause  of  action  in  a  civil  suit  for  dam- 
ages. Six  years  later  we  have  the  Act  of  August  14,  1876,  19  Stat, 
at  L.,  141,  punishing  by  fine  and  imprisonment  the  fraudulent 
use,  sale  and  counterfeiting  of  trade-marks  registered  in  pur- 
suance of  the  statutes  of  the  United  States,  on  which  the  informa- 
tions and  indictments  are  founded  in  the  cases  before  us. 

The  right  to  adopt  and  use  a  symbol  or  a  device  to  distinguish 
the  goods  or  property  made  or  sold  by  the  person  whose  mark  it  is, 
to  the  exclusion  of  the  use  of  that  symbol  by  all  other  persons,  has 
been  long  recognized  by  the  common  law  and  the  chancery  courts 
of  England  and  of  this  country,  and  by  the  statutes  of  some  of 
the  States.  It  is  a  property  right,  for  which  damages  may  be 
recovered  in  an  action  at  law,  and  the  violation  of  which  will  be 
enjoined  by  a  court  of  equity,  with  compensation  for  past  infringe- 
ment. This  property  and  the  exclusive  right  to  its  use  were  not 
created  by  the  Act  of  Congress,  and  do  not  now  depend  upon  that 
act  for  their  enforcement.  The  whole  system  of  trade-mark  prop- 
erty and  the  civil  remedies  for  its  protection  existed  long  anterior 
to  the  Act  of  Congress,  and  remain  in  full  force  since  its  passage 

These  propositions  are  so  well  understood  as  to  need  no  citation 
of  authorities  or  elaborate  argument  to  prove  them. 

The  property  in  trade-marks  and  the  right  to  their  exclusive  use 
resting  on  the  laws  of  the  States  in  the  same  manner  that  other 
property  does,  and  depending,  like  the  great  body  of  the  rights  of 
person  and  of  property,  for  their  security  and  protection  on  those 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       201 

laws,  the  power  of  Congress  to  legislate  on  the  subject,  to  establish 
the  conditions  on  which  these  rights  shall  depend,  the  period  of 
their  duration,  and  the  legal  remedies  for  their  protection,  if 
such  power  exist  at  all,  must  be  found  in  some  clause  of  the  Consti- 
tution of  the  United  States,  the  instrument  which  is  the  source 
of  all  the  powers  that  Congress  can  lawfully  exercise. 

The  first  of  these  is  the  eighth  clause  of  section  8  of  the  first 
article  of  the  Constitution.  *  *  *  "To  promote  the  progress 
of  science  and  useful  arts,  by  securing  for  limited  times,  to  authors 
and  inventors,  the  exclusive  right  to  their  respective  writings  and 
discoveries.  " 

As  the  first  and  only  attempt  by  Congress  to  regulate  the  right 
of  trade-marks  is  to  be  found  in  the  act  to  which  we  have  referred, 
entitled  "An  Act  to  Revise,  Consolidate  and  Amend  the  Statutes 
Relating  to  Patents  and  Copyrights,"  terms  which  have  long  since 
become  technical,  as  referring,  the  one  to  inventions  and  the  other 
to  writings  of  authors,  it  is  a  reasonable  inference  that  this  part 
of  the  statute  also  was,  in  the  opinion  of  Congress,  an  exercise  of 
the  power  found  in  that  clause  of  the  Constitution.     *     *     * 

Any  attempt,  however,  to  identify  the  essential  charaeteristcs  of 
a  trade-mark  with  inventions  and  discoveries  in  the  arts  and 
sciences,  or  with  the  writings  of  authors,  will  show  that  the  effort 
is  surrounded  with  insurmountable  difficulties. 

The  ordinary  trade-mark  has  no  necessary  relation  to  invention 
or  discovery.  The  trade-mark  recognized  by  the  common  law  is 
generally  the  growth  of  a  considerable  period  of  use,  rather  than  a 
sudden  invention.  It  is  often  the  result  of  accident  rather  than 
design,  and  when  under  the  act  of  Congress  it  is  sought  to  establish 
it  by  registration,  neither  originality,  invention,  discovery,  science 
or  art  is  in  any  way  essential  to  the  right  conferred  by  that  act. 
If  we  should  endeavor  to  classify  it,  under  the  head  of  writings  of 
authors,  the  objections  are  equally  strong.  In  this,  as  in  regard 
to  inventions,  there  is  required  originality.  And  while  the  word 
writings  may  be  liberally  construed,  as  it  has  been,  to  include 
original  designs  for  engravings,  prints,  etc.,  it  is  only  such  as  are 
original,  and  are  founded  in  the  creative  poAvers  of  the  mind. 
The  writings  which  are  to  be  protected  are  the  fruits  of  intellectual 
labor,  embodied  in  the  form  of  books,  prints,  engravings  and  the 
like.  The  trade-mark  may  be  and,  generally,  is,  the  adoption  of 
something  already  in  existence  as  the  distinctive  symbol  of  the 
party  using  it.  At  common  law  the  exclusive  right  to  it  grows  out 
of  the  use  of  it,  and  not  its  mere  adoption.    By  the  act  of  Congress 


202  Cases  on  Personal  Property 

his  exclusive  right  attaches  upon  registration.  But  in  neither  case 
does  it  depend  upon  novelty,  upon  invention,  upon  discovery,  or 
upon  any  work  of  the  brain.  It  requires  no  fancy  or  imagination, 
no  genius,  no  laborious  thought.  It  is  simply  founded  on  priority 
of  appropriation.  We  look  in  vain  in  the  statute  for  any  other 
qualification  or  condition.  If  the  symbol,  however  plain,  simple, 
old  or  well  known,  has  been  first  appropriated  by  the  claimant  as 
his  distinctive  trade-mark,  he  may,  by  registration,  secure  the  right 
to  its  exclusive  use.     *     *     * 

The  other  clause  of  the  Constitution  supposed  to  supply  the 
requisite  authority  in  Congress  is  the  third  of  the  same  section, 
which,  read  in  connection  with  the  granting  clause,  is  as  follows : 
"The  Congress  shall  have  power  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian  tribes. ' ' 

The  argument  is,  that  the  use  of  a  trade-mark — that  which  alone 
gives  it  any  value — is  to  identify  a  particular  class  or  quality  of 
goods  as  the  manufacture,  produce  or  property  of  the  person  who 
puts  them  in  the  general  market  for  sale;  that  the  sale  of  the 
article  so  distinguished  is  commerce ;  that  the  trade-mark  is,  there- 
fore, a  useful  and  valuable  aid  or  instrument  of  commerce,  and  its 
regulation  by  virtue  of  the  above  provision  of  the  Constitution 
belongs  to  Congress,  and  that  the  act  in  question  is  a  lawful  exer- 
cise of  this  power. 

It  is  not  every  species  of  property  which  is  the  subject  of  com- 
merce, or  which  is  used  or  even  essential  in  commerce,  which  is 
brought  by  this  clause  of  the  Constitution  within  the  control  of 
Congress.     *     *     * 

*  *  *  It  is  a  general  declaration  that  anybody  in  the  United 
States,  and  anybody  in  any  other  country  which  permits  us  to  do 
the  like,  may,  by  registering  a  trade-mark,  have  it  fully  protected. 
So,  while  the  person  registering  is  required  to  furnish  "A  state- 
ment of  the  class  of  merchandise,  and  the  particular  description 
of  the  goods  comprised  in  such  class  by  which  the  trade-mark  has 
been  or  is  intended  to  be  appropriated,"  there  is  no  hint  that  it  is 
goods  to  be  transported  from  one  State  to  another,  or  between  the 
United  States  and  foreign  countries.  Section  4939  is  intended  to 
impose  some  restrictions  upon  the  Commissioner  of  Patents  in  the 
matter  of  registration,  but  no  limitation  is  suggested  in  regard  to 
persons  or  property  engaged  in  the  different  classes  of  commerce 
mentioned  in  the  Constitution.  When  we  come  to  the  remedies 
provided  by  the  act  for  the  infringement  of  the  rights  of  the  owner 
of  the  registered  trade-mark  there  is  no  restriction  of  the  right 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       203 

of  action  or  suit,  to  a  case  of  trade-mark  used  in  foreign  or  inter- 
state commerce. 

It  is,  therefore,  manifest  that  no  such  distinction  is  found  in 
the  act,  but  that  its  broad  purpose  was  to  establish  a  universal 
system  of  trade-mark  registration,  for  the  benefit  of  all  who  had- 
already  used  a  trade-mark,  or  who  wished  to  adopt  one  in  the 
future,  without  regard  to  the  character  of  the  trade  to  which  it 
was  to  be  applied,  or  the  locality  of  the  owner,  with  the  solitary 
exception  that  those  who  resided  in  foreign  countries  which  ex- 
tended no  such  privileges  to  us  were  excluded  from  them 
here.     *     *     * 

While  we  have,  in  our  references  in  this  opinion  to  the  trade- 
mark legislation  of  Congress,  had  mainly  in  view  the  Act  of  1870, 
and  the  civil  remedy  which  that  act  provided,  it  was  because  the 
criminal  offenses  described  in  the  Act  of  1876  are,  by  their  express 
terms,  solely  referable  to  frauds,  counterfeits,  and  unlawful  use 
of  trade-marks  which  have  been  registered  under  the  provisions 
of  the  former  act.  If  that  act  is  unconstitutional,  so  that  the 
registration  under  it  confers  no  lawful  right,  then  the  criminal 
enactment  intended  to  protect  that  right  falls  with  it. 

The  questions  in  each  of  these  cases  being  an  inquiry  whether 
these  statutes  can  be  upheld  in  whole  or  in  part  as  valid  and 
constitutional,  must  be  answered  in  the  negative ;  and  it  will  be  so 
certified  to  the  proper  circuit  courts.^^ 


L 

Common  Law. 

Territorial  Limits. 

DERRINGER  v.  PLATE. 

29  Calif.  292.     1865. 

[Bill  in  equity  to  restrain  use  of  trade-mark.  Judgment  for  de- 
fendant and  plaintiff  appealed. 

The  plaintiff,  Henry  Derringer,  a  resident  of  Philadelphia, 
was  the  inventor  of  a  pistol  kno^vn  as  the  Derringer  pistol.  He 
adopted  as  a  trade-mark  the  words,  ''Derringer,  Philadel."  and 
had  the  same  stamped  on  the  breech  of  each  and  every  pistol  manu- 

"  See  Childs'  Personal  Property,  §§  96-107. 


204  Cases  on  Personal  Property 

f actured  and  sold  by  him.  The  plaintiff  averred  that  defendant  was 
manufacturing  and  selling,  at  San  Francisco,  a  pistol  similar  to 
that  of  the  plaintiff,  and  was  stamping  thereon  the  plaintiff's  trade- 
mark.] 

Rhodes,  J, — This  is  a  suit  in  equity  for  an  injunction  to  restrain 
the  defendant  from  pirating  the  plaintiff's  trade-mark,  and  for  the 
recovery  of  damages  for  a  violation  of  the  plaintiff's  trade-mark 
property. 

The  defendant's  demurrer  to  tlie  complaint  was  sustained,  and 
the  only  question  presented  on  the  appeal  is  whether  the  statute 
of  1863,  concerning  trade-marks  repealed  or  abrogated  the  reme- 
dies afforded  by  the  common-law  in  trade-mark  cases.  The  plaintiff 
does  not  allege  a  compliance  with  the  provisions  of  the  statute.  He 
contends  that  the  remedies  given  by  the  statute  are  cumulative 
to  those  which  a  party  was  entitled  to  at  common  law,  and  the 
defendant  insists  that  the  statute  forms  a  "complete  scheme"  in 
respect  to  trade-marks,  and  thereby  repeals  the  common-law  rules 
relating  to  the  same  subject  matter. 

Right  to  a  Trade-3Iark  at  Common  Law. 

Any  name,  symbol,  letter,  figure  or  device  adopted  by  the  persons 
manufacturing  or  selling  goods,  and  used  and  put  upon  such  goods 
to  distinguish  them  from  those  manufactured  or  sold  by  others, 
and  employed  so  often  and  for  such  a  length  of  time,  as  to  raise 
the  presumption  that  the  public  would  know  that  it  was  used  to 
indicate  ownership  of  the  goods  in  the  person  manufacturing  or 
selling  them,  constitutes  his  trade-mark.  His  right  to  the  trade- 
mark accrues  to  him  from  its  adoption  and  use  for  the  purpose 
of  designating  the  particular  goods  he  manufactures  or  sells,  and 
although  it  has  no  value  except  when  so  employed,  and  indeed  has 
no  separate  abstract  existence,  but  is  appurtenant  to  the  goods 
designated,  yet  the  trade-mark  is  property,  and  the  owner's  right 
of  property  in  it  is  as  complete  as  that  which  he  possesses  in  the 
goods  to  which  he  attaches  it,  and  the  law  protects  him  in  the 
enjoyment  of  the  one  as  fully  as  of  the  other.  In  order  that  the 
claimant  of  the  trade-mark  may  primarily  acquire  the  right  of 
property  in  it,  it  must  have  been  originally  adopted  and  used  by 
him — that  is,  the  assumed  name  or  designation  must  not  be  one 
that  was  then  in  actual  use  by  others  (Upton's  Trade-Marks  46)— 
and  such  adoption  and  use  confer  upon  him  the  right  of  property 


Patents,  Copyright,  Goodwill,  TR.vDEM.iRKS,  Etc.       205 

in  the  trade-mark.  It  was  at  one  time  thought  that  no  man  could 
acquire  a  right  to  a  particular  trade-mark  (Blauchard  v.  Hill, 
2  Atk.  284),  but  as  the  true  interests  of  manufactures  and  com- 
merce were  more  fully  developed  and  appreciated,  the  right  of 
property  in  trade-marks  was  recognized,  and  the  doctrine  has  been 
uniform  for  many  years,  that  the  manufacturer  or  merchant  does 
possess  an  exclusive  property  in  the  trade-mark  adopted  and  used 
by  him.  The  right  of  property  does  not  in  any  manner  depend  for 
its  inceptive  existence  or  support  upon  statutory  law,  though  its 
enjoyment  may  be  better  secured  and  guarded,  and  infringements 
upon  the  rights  of  the  proprietor  may  be  more  effectually  prevented 
or  redressed  by  the  aid  of  the  statute  than  at  eommon  law.  Its 
exercise  may  be  limited  or  controlled  by  statute,  as  in  case  of 
other  property,  but  like  the  title  to  the  good  will  of  a  trade,  which 
it  in  some  respects  resembles,  the  right  of  property  in  a  trade- 
mark accrues  without  the  aid  of  the  statute.  The  right  is  not 
limited  in  its  enjoyment  by  territorial  bounds,  but  subject  only  to 
such  statutory  regulations  as  may  be  properly  made  concerning 
the  use  and  enjoyment  of  other  property,  or  the  evidences  of  title 
to  the  same ;  the  proprietor  may  assert  and  maintain  his  property 
right  wherever  the  common  law  affords  remedies  for  wrongs.  The 
manufacturer  at  Philadelphia  who  has  adopted  and  uses  a  trade- 
mark, has  the  same  right  of  property  in  it  at  New  York  or  San 
Francisco  that  he  has  at  his  place  of  manufacture.  It  was  held  in 
Taylor  v.  Carpenter,  3  Story  450,  and  the  Collins  Company  v. 
Brown,  3  Kay  &  Johns  423,  that  an  alien  was  entitled  to  be  pro- 
tected in  the  ownership  of  this  character  of  property,  equally  with 
the  citizen. 

Act  of  1863  Concerning  Trade-Marks. 

Does  not  the  Act  of  1863,  instead  of  constituting  a  ''complete 
scheme"  for  the  acquisition  and  protection  of  property  in  trade- 
marks, rather  proceed  on  the  theory  that  this  species  of  property 
did  exist,  and  might  thereafter  be  acquired,  under  the  rules  of  the 
common  law,  and  provide  that  those  securing  such  right  according 
to  the  provisions  of  the  act,  might  have  a  further  or  more  efficient 
protection  than  those  who  failed  to  avail  themselves  of  the  statute, 
and  relied  upon  the  common  law  remedies?     *     *     * 

Common  Law  Remedies  for  Invasion  of  Trade-Marks. 

At  common  law,  the  remedies  for  invasions  of  trade-mark  prop- 
erty were  an  action  at  law  for  the  recovery  of  damages,  and  an 


2Ut)  Cases  on  Personal  Property 

injunction,  in  which  case  pecuniary  compensation  might  be  inci- 
dentally awarded.  Several  of  the  States  have,  by  statute,  added 
a  criminal  prosecution  as  a  further  remedy  or  protection.  The 
remedies  at  common  law,  are  still  left  by  our  statutes  in  those 
cases  where  the  trade-mark  has  not  been  registered  according  to 
the  act,  for  not  only  is  the  right  of  property  recognized  and 
affirmed  as  it  existed  at  common  law,  and  the  common  law  remedies 
are  not  taken  away,  but  the  protection  afforded  by  suits  at  law 
and  bills  for  injunctions  is  expressly  conceded.  Those  provisions 
add  nothing  to  the  rights  previously  possessed  by  the  owner  of  the 
trade-mark,  and  are  only  in  affirmance  of  the  common  law.  But 
he  does  not  have  the  aid  of  a  criminal  prosecution  for  his  protection. 

On  the  other  hand,  those  owning  trade-marks,  who  have  filed 
their  claims  and  affidavits,  and  paid  the  fees,  have  the  protection 
accorded  to  the  other  class  of  cases,  and  have  also  that  arising 
from  the  criminal  prosecutions,  with  penalties,  upon  conviction,  of 
more  than  usual  severity.     *     *     * 

Judgment  reversed,  and  the  cause  remanded,  with  directions  to 
the  court  below  to  overrule  the  demurrer. ^2 


1 


HANOVER  STAR  MILLING  CO.  v.  METCALF.     (No.  23.) 

ALLEN  &  WHEELER   CO.   v.   HANOVER  STAR  MILLING 

CO.     (No.  30.) 

240  TJ.  8.  403,  36  Sup.  Ct.  Rep.  357,  60  L.  Ed.  713.     1916. 

The  facts  are  stated  in  the  opinion. 

Mr.  Justice  Pitney. — These  cases  were  argued  together,  and 
may  be  disposed  of  in  a  single  opinion. 

In  No.  23,  the  Hanover  Star  Milling  Company,  an  Illinois  cor- 
poration engaged  in  the  manufacture  of  flour  in  that  state,  filed  a 
bill  in  equity  on  March  4,  1912,  in  the  United  States  district  court 
for  the  middle  district  of  Alabama,  against  Metcalf,  a  citizen  of 
the  State  of  Alabama  and  a  merchant  engaged  in  the  business  of 
selling  flour  at  Greenville,  Butler  county,  in  that  state,  to  restrain 
alleged  trade-mark  infringement  and  unfair  competition.  The  bill 
averred  that  for  twenty-seven  years  last  past  complainant  had  been 

12  See  Childs'  Personal  Property,  §§98,  99,   103,  106. 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       207 

engaged  in  the  manufacture  of  a  superior  and  popular  grade  of 
flour,  sold  by  it  at  all  times  under  the  name  of  "Tea  Rose"  flour, 
in  a  wrapping  with  distinctive  markings,  including  the  words  "Tea 
Rose"  and  a  design  containing  three  roses  imprinted  upon  labels 
attached  to  sacks  and  barrels;  that  this  flour  had  been  marketed 
thus  by  complainant  in  the  State  of  Alabama  for  the  preceding 
twelve  years,  during  which  time  *  *  *  it  had  built  up  a  large 
and  lucrative  market,  with  annual  sales  of  more  than  $175,000 
of  Tea  Rose  flour  in  that  state,  and  had  established  a  valuable 
reputation  for  the  name  "Tea  Rose"  and  the  distinctive  wrappings 
in  Alabama  and  other  states,  particularly  Georgia  and  Florida; 
that  until  shortly  before  the  commencement  of  the  suit  complain- 
ant's Tea  Rose  flour  was  the  only  flour  made,  sold,  or  offered  for 
sale  under  that  name  in  Butler  county  or  elsewhere  in  the  State 
of  Alabama,  and  the  name  "Tea  Rose"  had  represented  and  stood 
for  complainant's  flour;  and  that  recently  the  Steeleville  Milling 
Company,  of  Steeleville,  Illinois,  had,  through  Metcalf's  agency, 
been  marketing  in  Alabama,  and  particularly  in  Butler  county, 
flour  of  its  manufacture,  in  packages  and  wrappings  substantially 
identical  with  complainant's  and  bearing  a  design  containing  three 
roses  and  the  name  "Tea  Rose"  upon  the  labels,  in  a  manner 
calculated  to  deceive  and  in  fact  deceptive  to  purchasers,  thereby 
threatening  pecuniary  loss  to  complainant  exceeding  $3,000  in 
amount,  and  destroying  the  prestige  of  complainant's  "Tea  Rose" 
flour,  and  damaging  its  trade  therein. 

Defendant's  answer  denied  all  attempts  to  deceive  purchasers, 
and  further  denied  complainant's  right  to  the  exclusive  use  of  the 
words  "Tea  Rose"  or  the  picture  of  a  rose  as  a  trade-mark; 
averred  that  long  prior  to  complainant's  first  use  of  it,  and  as 
early  as  the  year  1872,  the  name  had  been  adopted,  appropriated, 
and  used  as  a  trade-mark  for  flour  by  the  firm  of  Allen  &  "Wheeler 
of  Troy,  Ohio,  and  used  by  it  and  its  successor,  the  Allen  & 
Wheeler  Company,  continuously  as  such;  and  alleged  that  the 
Steeleville  Milling  Company  had  used  its  "Tea  Rose"  brand  for 
more  than  sixteen  years  last  past,  and  as  early  as  the  year  1899  had 
sold  flour  in  Alabama  under  that  label. 

Upon  consideration  of  the  bill  and  answer  and  affidavits  sub- 
mitted by  the  respective  parties,  the  district  court  granted  a  teu,- 
porary  injunction  restraining  Metcalf  from  selling  flour  labeled 
"Tea  Rose,"  manufactured  by  the  Steeleville  Company  or  any 
person,  firm,  or  corporation  other  than  the  Hanover  Company,  at 
Greenville,  or  at  any  other  place  in  the  middle  district  of  Alabama. 


208  Cases  on  Personal.  Property 

Upon  appeal,  the  circuit  court  of  appeals  for  the  fifth  circuit 
reversed  this  decree  and  remanded  the  cause,  with  directions  to 
dismiss  the  bill.  122  C.  C.  A.  483,  204  Fed.  211.  A  writ  of 
certiorari  was  then  allowed  by  this  court. 

In  No.  30,  the  Allen  &  Wheeler  Company,  a  corporation  of  the 
state  of  Ohio,  manufacturing  flour  at  the  city  of  Troy,  in  that 
state,  filed  a  bill  against  the  Hanover  Star  Milling  Company  on 
May  23,  1912,  in  the  United  States  district  court  for  the  eastern 
district  of  Illinois,  averring  that  in  or  before  the  year  1872  the 
firm  of  Allen  &  Wheeler,  then  engaged  in  the  manufacture  of  flour 
at  Troy,  adopted  as  a  trade-mark  for  designating  one  of  its  brands 
the  words  "Tea  Eose,"  and  from  thence  until  the  year  1904  con- 
tinuously used  that  trade-mark  by  placing  it  upon  sacks,  barrels, 
and  packages  containing  the  brand  and  quality  of  flour  designated 
by  that  term  and  sold  throughout  the  United  States;  that  in  1904 
the  Allen  &  Wheeler  Company  was  incorporated  and  took  over 
the  mills,  machinery,  stock,  trade-mark,  and  good  will  of  the  firm, 
since  which  time  the  corporation  had  continued  to  use  the  trade- 
mark upon  flour  of  its  manufacture,  and  had  distributed  and  sold 
such  flour  in  the  markets  of  the  United  States,  whereby  the  words 
"Tea  Rose"  had  become  the  common-law  trade-mark  of  the  Allen 
&  Wheeler  Company ;  *  *  *  An  injunction  and  an  accounting 
of  profits  were  prayed.  Upon  this  bill,  a  demurrer  filed  by  the 
Hanover  Company,  and  affidavits  presented  by  both  parties,  the 
district  court  granted  a  temporary  injunction  restraining  the  use 
of  the  words  "Tea  Rose"  as  a  trade-mark  for  flour,  without  terri- 
torial restriction.  The  circuit  court  of  appeals  for  the  seventh 
circuit  reversed  this  decree,  and  remanded  the  cause  to  the  district 
court  for  further  proceedings  not  inconsistent  with  its  opinion. 
(L.  R.  A.  1916D,  136)  125  C.  C.  A.  515,  208  Fed.  513.  An  appeal  was 
taken  to  this  court,  and  a  writ  of  certiorari  was  subsequently 
granted.  The  appeal  must  be  dismissed  for  want  of  jurisdiction, 
and  the  case  will  be  disposed  of  under  the  writ  of  certio- 
rari.    *     *     * 

In  both  cases  it  was  shown  without  dispute  that  the  firm  of  Allen 
&  Wheeler  adopted  and  used  the  words  "Tea  Rose"  as  a  trade- 
mark for  one  kind  or  quality  of  flour  manufactured  by  it  as  early 
as  the  year  1872,  and  continued  that  use  until  the  year  1904,  when 
the  Allen  &  Wheeler  Company  was  incorporated. and  took  over 
the  mills,  machinery,  stock,  trade-mark,  and  good  will  of  the  firm 
and  succeeded  to  its  business.  But  there  is  nothing  to  show  the 
extent  of  such  use  or  the  markets  reached  by  it,  except  that  in  the 


Patents,  Copyright,  GtOOdwill,  Tradejiaeks,  Etc.       209 

year  1872  Allen  &  Wheeler  sold  three  lots  of  25  barrels  each  to  a 
firm  in  Cincinnati,  Ohio,  and  one  lot  of  100  barrels  to  a  firm  in 
Pittsburgh,  Pennsylvania;  *  *  *  There  is  nothing  to  show 
that  the  Allen  &  Wheeler  "Tea  Rose"  flour  has  been  even  adver- 
tised in  Alabama  or  the  adjoining  states,  and  there  is  clear  and 
undisputed  proof  that  it  has  not  been  sold  or  offered  for  sale  or 
known  or  heard  of  by  the  trade  in  Alabama,  Mississippi,  or  Georgia. 
In  No.  30,  there  is  uncontradicted  proof  that  the  Allen  &  Wheeler 
Company  is  selling  flour  in  Alabama  and  Georgia,  but  under  the 
brands  "Eldean  Patent"  and  "Trojan  Special." 

In  both  suits,  the  Hanover  Star  Miling  Company  introduced 
affidavits  fairly  showing  that  shortly  after  its  incorporation  in  the 
year  1885  it  adopted  for  one  of  its  brands  of  flour  the  name  "Tea 
Rose,"  and  adopted  for  the  package  or  container,  whether  sack  or 
barrel,  a  label  bearing  the  name  ' '  Tea  Rose ' '  and  the  design  already 
referred  to;  and  that  this  trade-mark  was  adopted  and  used  in 
good  faith  without  knowledge  or  notice  that  the  name  ' '  Tea  Rose ' ' 
had  been  adopted  or  used  by  the  Allen  &  Wheeler  firm,  or  by  any- 
body else.  In  1904  the  Hanover  Company  began  and  has  since 
prosecuted  a  vigorous  and  expensive  campaig-n  of  advertising  its 
Tea  Rose  flour,  covering  the  whole  of  the  State  of  Alabama,  and 
parts  of  Mississippi,  Georgia,  and  Florida,  *  *  *  There  is 
nothing  to  show  any  present  or  former  competition  in  Tea  Rose 
flour  between  the  latter  company  and  the  Allen  &  Wheeler  firm  or 
corporation,  or  that  either  party  has  even  advertised  that  brand 
of  flour  in  territory  covered  by  the  activities  of  the  other. 

Metcalf's  purchases  of  competing  Tea  Rose  flour,  which  gave 
rise  to  the  suit  brouglit  by  the  Hanover  Company  against  him,  were 
made  from  the  Steeleville  Milling  Company,  an  Illinois  corpora- 
tion, which  appears  to  have  adopted  the  name  and  design  of  a  tea 
rose  for  flour  in  the  year  1895. 

It  should  be  added  that,  so  far  as  appears,  none  of  the  parties 
here  concerned  has  registered  the  trade-mark  under  any  act  of 
Congress  or  under  the  law  of  any  state.  Nor  does  it  appear  that 
in  any  of  the  states  in  question  there  exists  any  peculiar  local 
rule,  arising  from  statute  or  decision.  Hence,  the  cases  must  be 
decided  according  to  common-law  principles  of  general  application. 

Interesting  and  important  questions  are  raised  concerning  the 
territorial  extent  of  trade-mark  rights.     *     «     * 

It  will  be  convenient  to  dispose  first  of  No.  30.  Here  the  bill 
is  rested  upon  alleged  trade-mark  infringement,  pure  and  simple, 
and  no  question  of  unfair  competition  is  involved.  The  decision 
C.  P.  P.— 14 


210  Cases  on  Personal  Property 

of  the  court  of  appeals  for  the  seventh  circuit  in  favor  of  the 
Hanover  Company  and  against  the  Allen  &  Wheeler  Company  was 
rested  upon  the  ground  that  although  the  adoption  of  the  Tea  Eose 
mark  by  the  latter  antedated  that  of  the  Hanover  Company,  its 
only  trade,  so  far  as  shown,  was  in  territory  north  of  the  Ohio 
river,  while  the  Hanover  Company  had  adopted  "Tea  Rose"  as  its 
mark  in  perfect  good  faith,  with  no  knowledge  that  anybody  else 
was  using  or  had  used  those  words  in  such  a  connection,  and 
during  many  years  it  had  built  up  and  extended  its  trade  in  the 
southeastern  territory,  comprising  Georgia,  Florida,  Alabama,  and 
Mississippi,  so  that  in  the  flour  trade  in  that  territory  the  mark 
"Tea  Rose"  had  come  to  mean  the  Hanover  Company's  flour, 
and  nothing  else.  The  court  held  in  effect  that  the  right  to  pro- 
tection in  the  exclusive  use  of  a  trade-mark  extends  only  to  those 
markets  w^here  the  trader's  goods  have  become  known  and  identified 
by  his  use  of  the  mark;  and  because  of  the  non-occupancy  by  the 
Allen  &  Wheeler  Company  of  the  southeastern  markets  it  had  no 
ground  for  relief  in  equity.  Let  us  test  this  by  reference  to  general 
principles. 

The  redress  that  is  accorded  in  trade-mark  cases  is  based  upon 
the  party's  right  to  be  protected  in  the  good  will  of  a  trade  or 
business.  The  primary  and  proper  function  of  a  trade-mark  is 
to  identify  the  origin  or  ownership  of  the  article  to  which  it  is 
affixed.  Where  a  party  has  been  in  the  habit  of  labeling  his  goods 
with  a  distinctive  mark,  so  that  purchasers  recognize  goods  thus 
marked  as  being  of  his  production,  others  are  debarred  from  apply- 
ing the  same  mark  to  goods  of  the  same  description,  because  to  do 
so  would  in  effect  represent  their  goods  to  be  of  his  production 
and  would  tend  to  deprive  him  of  the  profit  he  might  make  through 
the  sale  of  the  goods  which  the  purchaser  intended  to  buy.  Courts 
afford  redress  or  relief  upon  the  ground  that  a  party  has  a  valuable 
interest  in  the  good  will  of  his  trade  or  business,  and  in  the  trade- 
marks adopted  to  maintain  and  extend  it.  The  essence  of  the 
■wrong  consists  in  the  sale  of  the  goods  of  one  manufacturer  or 
vendor  for  those  of  another.     *     *     * 

This  essential  element  is  the  same  in  trade-mark  cases  as  in  cases 
of  unfair  competition  unaccompanied  with  trade-mark  infringe- 
ment. In  fact,  the  common  law  of  trade-marks  is  but  a  part  of 
the  broader  law  of  unfair  competition.     *     *     * 

Common-law  trade-marks,  and  the  right  to  their  exclusive  use, 
are,  of  course,  to  be  classed  among  property  rights  (Trade-Mark 
Cases,  100  U.  S.  82,  92,  93,  25  L.  ed.  550,  551)  ;  but  only  in  the 


Patents,  Copyright,  GtOOdwill,  Trademarks,  Etc.       211 

sense  that  a  man's  right  to  the  continued  enjoyment  of  his  trade 
reputation  and  the  good  will  that  flows  from  it,  free  from  unwar- 
ranted interference  by  others,  is  a  property  right,  for  the  protec- 
tion of  which  a  trade-mark  is  an  instrumentality.  As  was  said  in 
the  same  case  (p.  94),  the  right  grows  out  of  use,  not  mere  adoption. 
In  the  English  courts  it  often  has  been  said  that  there  is  no  prop- 
erty whatever  in  a  trade-mark,  as  such.  *  *  *  It  is  plain  that 
in  denying  the  right  of  property  in  a  trade-mark  it  was  intended 
only  to  deny  such  property  right  except  as  appurtenant  to  an 
established  business  or  trade  in  connection  with  which  the  mark  is 
used.  *  *  *  Thus,  in  Ainsworth  v.  "Walmsley,  L.  R.  1  Eq. 
518,  524,  Vice  Chancellor  Sir  Wm,  Page  Wood  said:  "This  court 
has  taken  upon  itself  to  protect  a  man  in  the  use  of  a  certain  trade- 
mark as  applied  to  a  particular  description  of  article.  He  has  no 
property  in  that  mark  per  se,  any  more  than  in  any  other  fanciful 
denomination  he  may  assume  for  his  own  private  use,  otherwise 
than  with  reference  to  his  trade.  If  he  does  not  carry  on  a  trade 
in  iron,  but  carries  on  a  trade  in  linen,  and  stamps  a  lion  on  his 
linen,  another  person  may  stamp  a  lion  on  iron ;  but  when  he*  has 
appropriated  a  mark  to  a  particular  species  of  goods,  and  caused 
his  goods  to  circulate  with  this  mark  upon  them,  tlie  court  has  said 
that  no  one  shall  be  at  liberty  to  defraud  that  man  by  using  that 
mark,  and  passing  off  goods  of  his  manufacture  as  being  the  goods 
of  the  owner  of  that  mark. ' ' 

In  short,  the  trade-mark  is  treated  as  merely  a  protection  for  the 
good  will,  and  not  the  subject  of  property  except  in  connection 
with  an  existing  business.  The  same  rule  prevails  generally  in 
this  country,  and  is  recognized  in  the  decisions  of  this  court  already 
cited.     *     *     * 

Expressions  are  found  in  many  of  the  cases  to  the  effect  that 
the  exclusive  right  to  the  use  of  a  trade-mark  is  founded  on  priority 
of  appropriation.  Thus,  in  Delaware  &  H.  Canal  Co.  v.  Clark,  13 
Wall  311,  323,  20  L.  ed.  581,  583,  reference  is  made  to  "the  first 
appropriator;"  in  McLean  v.  Fleming,  96  U.  S.  245,  251,  24  L.  ed. 
828,  830,  to  "the  person  who  first  adopted  the  stamp  ;"  in  Amoskeag 
I\Ifg.  Co.  V.  Trainer,  101  U.  S.  51,  53,  25  L.  ed.  993,  994,  the  exprcs- 
.sion  is  "any  symbol  or  device,  not  previously  appropriated,  which 
will  distinguish,"  etc.  But  these  expressions  are  to  be  understood 
in  their  application  to  the  facts  of  the  cases  decided.  In  the 
ordinary  case  of  parties  competing  under  the  same  mark  in  the 
same  market,  it  is  correct  to  say  that  prior  appropriation  settles 
the  question.    But  where  two  parties  independently  are  employing 


212  Cases  on  Personal.  Property 

the  same  mark  upon  goods  of  the  same  class,  but  in  separate  markets 
wholly  remote,  the  one  from  the  other,  the  question  of  prior 
appropriation  is  legally  insignificant;  unless,  at  least,  it  appear 
that  the  second  adopter  has  selected  the  mark  with  some  design 
inimical  to  the  interests  of  the  first  user,  such  as  to  take  the  benefit 
of  the  reputation  of  his  goods,  to  forestall  the  extension  of  his 
trade,  or  the  like. 

Of  course,  if  the  symbol  or  device  is  already  in  general  use, 
employed  in  such  a  manner  that  its  adoption  as  an  index  of  source 
or  origin  would  only  produce  confusion  and  mislead  the  public, 
it  is  not  susceptible  of  adoption  as  a  trade-mark,     *     *     * 

That  property  in  a  trade-mark  is  not  limited  in  its  enjoyment 
by  territorial  bounds,  but  may  be  asserted  and  protected  wherever 
the  law  affords  a  remedy  for  wrongs,  is  true  in  a  limited  sense. 
Into  whatever  markets  the  use  of  a  trade-mark  has  extended,  or 
its  meaning  has  become  known,  there  will  the  manufacturer  or 
trader  whose  trade  is  pirated  by  an  infringing  use  be  entitled  to 
protection  and  redress.  But  this  is  not  to  say  that  the  proprietor 
of  a  trade-mark,  good  in  the  markets  M'here  it  has  been  employed, 
can  monopolize  markets  that  his  trade  has  never  reached,  and 
where  the  mark  signifies  not  his  goods,  but  these  of  another.  •  We 
agree  with  the  court  below  (L.  R.  A.  1916  D,  136)  125  C.  C.  A.  515, 
208  Fed.  519,  that  "since  it  is  the  trade,  and  not  the  mark,  that  is  to 
be  protected,  a  trade-mark  acknowledges  no  territorial  boundaries 
of  municipalties  or  states  or  nations,  but  extends  to  every  market 
where  the  trader's  goods  have  become  known  and  identified  by  his 
use  of  the  mark.  But  the  mark,  of  itself,  cannot  travel  to  markets 
where  there  is  no  article  to  wear  the  badge  and  no  trader  to  offer 
the  article."     *     *     * 

It  results  from  the  general  principles  thus  far  discussed  that 
trade-mark  rights,  like  others  that  rest  in  user,  may  be  lost  by 
abandonment,  nonuser,  laches,  or  acquiescence.  Abandonment,  in 
the  strict  sense,  rests  upon  an  intent  to  abandon;  and  we  have 
no  purpose  to  qualify  the  authority  of  Saxlehner  v.  Eisner  &  M.  Co., 
179  U.  S.  19,  31,  45  L.  ed.  60,  73,  21  Sup.  Ct.  Rep.  7,  to  that  effect. 
*  *  #  Allowing  to  the  Allen  &  Wheeler  firm  and  corporation 
the  utmost  that  the  proofs  disclose  in  their  favor,  they  have  con- 
fined their  use  of  the  "Tea  Rose"  trade-mark  to  a  limited  territory, 
leaving  the  southeastern  states  untouched.  Even  if  they  did  not 
know — and  it  does  not  appear  that  they  did  know —  that  the 
Hanover  Company  was  doing  so,  they  must  be  held  to  have  taken 
the  risk  that  some  innocent  party  might,  during  their  forty  years 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       213 

of  inactivity,  hit  upon  the  same  mark  and  expend  money  and  effort 
in  building  up  a  trade  in  flour  under  it.  If,  during  the  long  period 
that  has  elapsed  since  the  last  specified  sale  of  Allen  &  Wheeler 
"Tea  Rose"— this  was  "in  the  later  '70 's"— that  flour  has  been 
sold  in  other  parts  of  the  United  States,  excluding  the  southeastern 
states,  no  clearer  evidence  of  abandonment  by  nonuser  of  trade- 
mark rights  in  the  latter  fleld  could  reasonably  be  asked  for. 
*  *  *  Under  the  circumstances  that  are  here  presented,  to  per- 
mit the  Allen  &  Wheeler  Company  to  use  the  mark  in  Alabama, 
to  the  exclusion  of  the  Hanover  Company,  would  take  the  trade 
and  good  will  of  the  latter  company — ^built  up  at  much  expense 
and  without  notice  of  the  former's  rights — and  confer  it  upon  the 
former,  to  the  complete  perversion  of  the  proper  theory  of  trade- 
mark rights.     *     *     * 

We  come  now  to  No.  23.  The  court  of  appeals  (122  C.  C.  A.  483, 
204  Fed.  211)  denied  relief  to  the  Hanover  Company  against  Met- 
calf  under  the  head  of  trade-mark  infringement,  partly  upon  the 
ground  that  Allen  &  Wheeler  were  the  first  appropriator's  of  the 
mark,  and  that  it  had  been  continuously  used  by  that  firm  and 
its  successor  down  to  the  time  of  the  suit,  but  principally  upon 
the  ground  that,  irrespective  of  whether  this  use  was  so  general 
or  continuous  as  to  exclude  other  appropriations,  the  evidence 
showed  a  use  of  the  same  brand  by  the  Steeleville  Company  com- 
mencing in  the  year  1895,  and  carried  on  in  the  states  of  Illinois, 
Tennessee,  Indiana,  Arkansas,  and  Mississippi,  with  occasional  ship- 
ments into  Alabama, — a  use  so  extensive  and  continuous  as  to 
exclude  the  claim  of  the  Hanover  Company  to  either  first  appro- 
priation or  exclusive  use  in  any  of  the  territory  from  which  it 
sought  to  expel  Metcalf ;  and  that  "the  Steeleville  Milling  Com- 
pany's first  use  and  its  extensive  and  continuous  use  established 
by  the  evidence  in  the  territory  of  its  selection  gave  it  the  unquali- 
fied right  to  extend  unhampered  its  trade  in  flour  under  the  Tea 
Rose  brand  into  any  part  of  the  United  States,  and  that,  too, 
without  incurring  the  legal  odium  of  unfair  competition. "     *     *     * 

As  we  regard  the  proofs,  they  do  not  sustain  the  view  of  the 
circuit  court  of  appeals  for  the  fifth  circuit  either  as  to  first  use 
or  as  to  extensive,  continuous,  or  exclusive  use  of  the  Tea  Rose 
brand  by  the  Steeleville  Company,  and  there  is  nothing  in  the 
history  of  the  use  of  the  brand  in  the  disputed  territory  to  deprive 
the  Hanover  Company  of  its  right  to  be  protected  at  least  against 
unfair  competition  at  the  hands  of  the  Steeleville  Company  or  of 
Metcalf  as  its  representative.     *     *     * 


214  Cases  on  Personal,  Property 

It  results  that  the  decree  under  review  in  No.  23  should  be 
reversed,  and  the  cause  remanded  for  further  proceedings  in  accord- 
ance with  this  opinion,  and  that  the  decree  in  No.  30  should  be 
affirmed. 

Decree  in  No.  23  reversed. 

Appeal  in  No.  30  dismissed. 

Decree  in  No.  30  affirmed. ^^ 


Statutory.  v 

Use  of  Geographical  Name. 


ELGIN  NATIONAL  WATCH  CO.  v.  ILLINOIS  WATCH 
CASE    CO. 

179  U.  S.  665,  21  Sup.  Ct.  Rep.  270,  45  L.  Ed.  365.     1901. 

The  facts  as  stated  by  the  court  are  in  substance  as  follows : 

This  was  a  bill  filed  in  the  circuit  court  of  the  United  States  for 
the  northern  distric,t  of  Illin.ois  by  the  Elgin, National  Watch  Com- 
pany, a  corporation  organi;!ed  under  the  laws  of  the  state  of  Illi- 
nois, having  its  principal  place  of  business  at  Elgin  and  its  office 
in  Chicago  in  that  state,  against  the  Illinois  Watch  Case  Company, 
also  a  corporation  of  Illinois,  with  its  principal  place  of  business 
at  Elgin,  and  certain  other  defendants,  citizens  of  Illinois. 

The  bill  alleged : 

"That  prior  to  the  11th  day  of  April,  A.  D.  1868,  your  orator 
was  engaged  in  the  business  of  manufacturing  watches  at  Elgin, 
Illinois,  which  was  then  a  small  town  containing  no  other  manu- 
factory of  watches  or  watch  cases ;  that  your  orator  had  built  up  at 
said  town  a  very  large  business  in  the  manufacture  of  watches  and 
watch  movements,  and  that  said  watches  and  watch  movements  so 
made  by  your  orator,  had  become  known  all  over  the  world,  and 
had  been  largely  sold  and  used,  not  only  in  this,  but  in  foreign 
countries. 

"  *  *  *  That  at  and  before  said  11th  day  of  April,  A.  D. 
1868,  your  orator  had  adopted  the  word  'Elgin'  as  a  trade-mark 
for  its  said  watches  and  watch  movements;  that  said  trade-mark 

13  See  Childs '  Personal  Property,  §  103. 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       215 

was  marked  upon  the  watches  and  watch  movements  made  by  your 
orator,  both  upon  those  which  entered  into  commerce  in  this  coun- 
try and  those  which  were  exported  to  and  sold  in  foreign  countries ; 
that  your  orator's  watches  became  known  all  over  the  world  as 
Elgin  watches,  and  their  origin  and  source,  as  a  product  of  your 
orator's  manufacture,  were  distinguished  from  those  of  all  other 
watches  manufactured  in  any  part  of  the  world  by  said  distinguish- 
ing word  or  trade-mark,  'Elgin;'     *     *     * 

u  *  *  *  r^-^Q^^  a^  t]^g  ^ijne  of  its  adoption  of  said  trade- 
mark no  other  person,  firm,  or  corporation  engaged  in  the  manu- 
facture or  sale  of  watches  was  using  the  word  'Elgin'  as  a  trade- 
mark or  as  a  designation  to  designate  its  goods  from  those  of  other 
manufacturers,  and  that  your  orator  had  the  legal  right  to  appro- 
priate and  use  the  said  word  as  its  lawful  trade-mark  for  its 
watches  and  watch  movements." 

It  was  further  averred  "that,  on  the  19th  day  of  July,  a.  d.  1892, 
under  the  act  of  Congress  relating  to  the  registration  of  trade- 
marks, your  orator  caused  said  trade-mark  to  be  duly  registered 
in  the  Patent  Office  of  the  United  States  according  to  law,  as  by 
the  certificate  of  said  registration,  or  a  copy  thereof,  duly  certified 
by  the  Commissioner  of  Patents,  here  in  court  to  be  produced,  will 
more  fully  and  at  large  appear." 

The  bill  charged  that  defendants  had  infringed  the  rights  of 
complainant  by  engraving  or  otherwise  affixing  the  word  "Elgin" 
to  the  watch  cases  made  and  sold  by  them ;  that  such  watch  cases 
were  adapted  to  receiving  watch  movements  of  different  construc- 
tion from  those  made  by  complainant;  that  inferior  watch  move- 
ments were  liable  to  be  and  often  were  incased  in  them.     *     *     * 

The  prayer  was  for  damages  and  for  an  injunction  to  restrain 
defendants  "from  directly  or  indirectly  making  or  selling  any 
watch  case  or  watch  cases  marked  with  your  orator's  said  trade- 
mark, and  from  using  your  orator's  said  trade-mark  in  any  way 
upon  watches  or  watch  cases  or  in  the  defendants'  printed  adver- 
tisements, circulars,  labels,  or  the  boxes  or  packages  in  which  their 
said  watch  cases  are  put  or  exposed  for  sale. 

A  demurrer  having  been  overruled,  defendants  answered  deny- 
ing the  legality  of  the  registration  of  the  alleged  trade-mark,  and . 
any  attempt  on  their  part  to  deceive  the  public,  or  the  doing  of 
anything  they  did  not  have  the  legal  right  to  do;  and  asserting 
that  they  had  never  manufactured  or  offered  for  sale  watches  or 
watch  movements;  that  they  manufactured  at  Elgin  watch  cases 
only;  that  complainant  had   never  manufactured  or  sold   watch 


216  Cases  on  Personal  Property 

cases  witli  the  word  "Elgin"  on  them;  that  the  business  of  the 
two  companies  was  separate  and  distinct;  and  that  whenever  the 
defendant  company  had  used  the  word  ''Elgin"  it  had  usually, 
if  not  invariably,  been  done  in  connection  with  some  other  word, 
as  "Elgin  Giant"  or  "Elgin  Commander"  or  "Elgin  Tiger,"  or 
some  other  word  in  combination  with  the  word  "Elgin;"  that 
defendant  company  had  never  used  the  word  "Elgin"  alone,  or  sepa- 
rately, as  registered  by  complainant,  upon  goods  exported  to  foreign 
nations  or  used  in  foreign  commerce,  but  only  in  domestic  com- 
merce, and  to  inform  the  public  of  the  place  where  watch  cases  of 
the  defendant  company  were  manufactured.     *     *     * 

It  was  further  alleged  "that  the  word  'Elgin,'  being  a  geo- 
graphical name  or  word  indicating  the  name  of  a  prominent  manu- 
facturing city  in  which  any  manufacturer  of  watches,  watch  move- 
ments, or  watch  cases  is  at  liberty  to  locate  and  carry  on  his  busi- 
ness, is  not  appropriable  by  any  single  manufacturing  person,  firm, 
or  corporation,  but  is  open  as  of  common  right  to  the  use  of  any 
person,  firm,  or  corporation  carrying  on  business  at  the  city  of 
Elgin."     *     *     * 

The  circuit  court  decreed  that  the  use  of  the  word  "Elgin," 
whether  alone  or  in  connection  with  other  words,  was  a  violation 
and  infringement  of  complainant's  exclusive  rights  in  the  prem- 
ises, and  that  an  injunction  issue  restraining  the  use  of  the  word 
alone  or  in  connection  with  other  words  or  devices,  upon  watches, 
or  watch  cases,  or  packages  containing  watches  or  watch  cases, 
going  into  commerce  with  foreign  nations  or  with  the  Indian  tribes, 
in  such  a  way  as  to  be  liable  to  cause  purchases  or  others  to  mis- 
take said  watches  or  the  watch  movements  incased  in  said  watch 
cases  for  watches  or  watch  movements  manufactured  by  complain- 
ant. 89  Fed.  Eep.  487.  The  case  having  been  carried  to  the  court 
of  appeals,  that  court  reversed  the  decree  of  the  circuit  court,  and 
remanded  the  cause,  with  instructions  to  dismiss  the  bill.  35  C.  C. 
A.  237,  94  Fed.  Rep.  667. 

Mr.  Chief  Justice  Fuller. — The  circuit  court  of  appeals  held 
that  the  bill  must  be  dismissed  for  want  of  jurisdiction.  The  parties 
to  the  suit  were  all  citizens  of  Illinois,  and  the  court  was  of  opinion 
that  it  could  not  be  maintained  under  the  act  of  March  3,  1881  (21 
Stat,  at  L.  592,  chap'.  138). 

In  the  Trade-mark  Cases,  100  U.  S.  82,  sul)  ndm.  ITnited  States  v. 
Steffens,  25  L.  ed.  550,  this  court  held  that  the  act  of  July  8,  1870, 
carried  forward  in  §§  4937  to  4947  of  the  Revised  Statutes,  was 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       217 

void  for  want  of  constitutional  authority,  inasmuch  as  it  was  so 
framed  that  its  provisions  were  applicable  to  that  which  was  subject 
to  the  control  of  Congress.     «     *     * 

The  act  of  March  3,  18S1,  followed.  By  its  1st  section  it  was 
provided  that  "owners  of  trade-marks  used  in  commerce  with 
foreign  nations  or  with  the  Indian  tribes,  provided  such  ownei*s 
shall  be  domiciled  in  tlie  United  States,  or  located  in  any  foreign 
country  or  tribes,  which  by  treaty,  convention,  or  law,  afford  simi- 
lar privileges  to  citizens  of  the  United  States,  may  obtain  regis- 
tration of  such  trade-marks  by  complying  with"  certain  specified 
requirements. 

By  the  2d  section  the  application  prescribed  by  the  1st  ''must, 
in  order  to  create  any  right  whatever  in  favor  of  the  party  filing 
it,  be  accompanied  by  a  written  declaration"  "that  such  party  has 
at  the  time  a  right  to  the  use  of  the  trade-mark  sought  to  be 
registered,  and  that  no  other  person,  firm,  or  corporation  has  the 
right  to  such  use,  either  in  the  identical  form  or  in  any  such  near 
resemblance  thereto  as  might  be  calculated  to  deceive;  that  such 
trade-mark  is  used  in  commerce  with  foreign  nations  or  Indian 
tribes,  as  above  indicated ;     *     *     *  " 

The  3d  section  provided  that  "no  alleged  trade-mark  shall  be 
registered  unless  the  same  appear  to  be  lawfully  used  as  such  by 
the  applicant  in  foreign  commerce  or  commerce  with  Indian  tribes 
as  before  mentioned,  or  is  within  the  provision  of  a  treaty,  con- 
vention, or  declaration  with  a  foreign  power;  nor  which  is  merely 
the  name  of  the  applicant;  nor  which  is  identical  with  a  regis- 
tered or  known  trade-mark  owned  by  another  and  appropriate  to 
the  same  class  of  merchandise ;  or  which  so  nearly  resembles  some 
other  person's  lawful  trade-mark  as  to  be  likely  to  cause  confusion 
or  mistake  in  the  mind  of  the  public,  or  to  deceive  purchasers."' 

By  the  4th  section  certificates  of  registration  of  trade-marks 
were  to  be  issued,  copies  of  which  and  of  trade-marks  and  declara- 
tions filed  therewith  should  be  evidence  "in  any  suit  in  which  such 
trade-marks  shall  be  brought  in  controversy ; ' '  and  by  §  5  it  was 
provided  that  the  certificate  of  registry  should  remain  in  force  for 
thirty  years  from  its  date,  and  might  be  renewed  for  a  like  period. 
By  the  11th  section  nothing  in  the  act  was  to  be  construed  "to 
give  cognizance  to  any  court  of  the  United  States  in  an  action  or 
suit  between  citizens  of  the  same  state,  unless  the  trade-mark  in 
controversy  is  used  on  goods  intended  to  be  transported  to  a  for- 
eign country  or  in  lawful  commercial  intercourse  with  an  Indian 
tribe."    The  7th  section  was  as  follows: 


218  Cases  on  Person^vl  Property 

' '  That  registration  of  a  trade-mark  shall  be  prima  facie  evidence 
of  ownership."     *     *     * 

Thus  it  is  seen  that  under  the  act  registration  is  prima  facie 
evidence  of  ownership ;  that  the  certificate  is  evidence  in  any  suit 
or  action  in  which  the  registered  trade-mark  is  brought  in  con- 
troversy; that  the  act  practically  enables  treaty  stipulations  to  be 
carried  out,  and  affords  the  basis  for  judicial  redress  for  infringe- 
ment in  foreign  countries,  where  such  redress  cannot  ordinarily 
be  had  without  registration,  as  well  as  in  the  courts  of  the  United 
States,  when  jurisdiction  would  not  otherwise  exist.     *     *     * 

Trade-marks  are  not  defined  by  the  act,  which  assumes  their 
existence  and  ownership,  and  provides  for  a  verified  declaration  by 
applicants  for  registration,  that  they  have  the  exclusive  right  to 
the  particular  trade-mark  sought  to  be  registered. 

The  term  has  been  in  use  from  a  very  early  date,  and,  generally 
speaking,  means  a  distinctive  mark  of  authenticity,  through  which 
the  products  of  particular  manufacturers  or  the  vendible  commodi- 
ties of  particular  merchants  may  be  distinguished  from  those  of 
others.  It  may  consist  in  any  symbol  or  in  any  form  of  words,  but 
as  its  office  is  to  point  out  distinctively  the  origin  or  ownership  of 
the  articles  to  which  it  is  affixed,  it  follows  that  no  sign  or  form 
of  words  can  be  appropriated  as  a  valid  trade-mark  which,  from 
the  nature  of  the  fact  conveyed  by  its  primary  meaning,  others 
may  employ  with  equal  truth  and  with  equal  right  for  the  same 
purpose. 

And  the  general  rule  is  thoroughly  established,  that  words  that 
do  not  in  and  of  themselves  indicate  anything  in  the  nature  of 
origin,  manufacture,  or  ownership,  but  are  merely  descriptive  of 
the  place  where  an  article  is  manufactured  or  produced,  cannot 
be  monopolized  as  a  trade-mark.     *     *     * 

The  word  "Elgin"  is  and  has  been  for  very  many  years  the 
name  of  a  well-known  manufacturing  city  in  Illinois.  The  factory 
and  business  of  appellees  were  located  at  Elgin  and  in  describing 
their  watch  cases  as  made  there  it  is  not  denied  that  they  told  the 
literal  truth  so  far  as  that  fact  was  concerned,  and  this  they  were 
entitled  to  do  according  to  the  general  rule.  Obviously,  to  hold 
that  appellant  had  obtained  the  exclusive  right  to  use  the  name 
"Elgin"  would  be  to  disregard  the  doctrine  characterized  by  Mr. 
Justice  Strong  in  Delaware  &  H.  Canal  Co.  v.  Clark,  as  sound 
doctrine,  "that  no  one  can  apply  the  name  of  a  district  of  country 
to  a  well-known  article  of  commerce,  and  obtain  thereby  such  an 
exclusive  right  to  the  application  as  to  prevent  others  inhabiting 


Patents,  Copyright,  Goodwill,  Tradem.^ks,  Etc.       219 

the  district  or  dealing  in  similar  articles  coming  from  the  district 
from  truthfully  using  the  same  designation." 

But  it  is  contended  that  the  name  ''Elgin"  had  acquired  a  sec- 
ondary signification  in  connection  with  its  use  by  appellant,  and 
should  not,  for  that  reason,  be  considered  or  treated  as  merely  a 
geographical  name.  It  is  undoubtedly  true  that  where  such  a 
secondary  signification  has  been  acquired,  its  use  in  that  sense  will 
be  protected  by  restraining  the  use  of  the  word  by  others  in  such 
a  way  as  to  amount  to  a  fraud  on  the  public,  and  on  those  to  whose 
employment  of  it  the  special  meaning  has  become  attached. 

In  other  words,  the  manufacturer  of  particular  goods  is  entitled 
to  the  reputation  they  have  acquired,  and  the  public  is  entitled  to 
the  means  of  distinguishing  between  those  and  other  goods;  and 
protection  is  accorded  against  unfair  dealing,  whether  there  be  a 
technical  trade-mark  or  not.  The  essence  of  the  wrong  consists  in 
the  sale  of  the  goods  of  one  manufacturer  or  vendor  for  those  of 
another. 

If  a  plaintiff  has  the  absolute  right  to  the  use  of  a  particular 
word  or  words  as  a  trade-mark,  then,  if  an  infringement  is  shown, 
the  wrongful  or  fraudulent  intent  is  presumed,  and  although 
allowed  to  be  rebutted  in  exemption  of  damages,  the  further  viola- 
tion of  the  right  of  property  will  nevertheless  be  restrained.  But 
where  an  alleged  trade-mark  is  not  in  itself  a  good  trade-mark,  yet 
the  use  of  the  word  has  come  to  denote  the  particular  manufacturer 
or  vendor,  relief  against  unfair  competition  or  perfidious  dealing 
will  be  awarded  by  requiring  the  use  of  the  word  by  another  to  be 
confined  to  its  primary  sense  by  such  limitations  as  will  prevent 
misapprehension  on  the  question  of  origin.  In  the  latter  class  of 
cases  such  circumstances  must  be  made  out  as  will  show  wrongful 
intent  in  fact,  or  justify  that  inference  from  the  inevitable  conse- 
quences of  the  act  complained  of.     *     *     * 

In  Singer  Mfg.  Co.  v.  June  Mfg.  Co.  the  Singer  machines  were 
covered  by  patents,  whereby  there  was  given  to  them  a  distinctive 
character  and  form,  which  caused  them  to  be  known  as  the  Singer 
machines,  as  differing  from  the  form  and  character  of  machines 
made  by  others.  The  word  ''Singer"  Avas  adopted  by  the  Singer 
Company  as  designative  of  their  distinctive  style  of  machines, 
rather  than  as  solely  indicative  of  the  origin  of  manufacture.  That 
word  constituted  the  generic  description  of  the  type  and  class  of 
machines  made  by  that  company,  and  on  the  expiration  of  the 
patent,  the  right  to  make  the  patented  article  and  to  use  the  generic 
name  necessarily  passed  to  the  public.    But,  nevertheless,  this  court 


220  Cases  on  Personal.  Property 

held  that  those  who  availed  themselves  of  this  public  dedication  to 
make  the  machines  and  use  the  generic  designation  did  so  on  con- 
dition that  the  name  should  be  so  used  as  not  to  deprive  others  of 
their  rights  or  to  deceive  the  public.  Mr.  Justice  White,  delivering 
the  opinion,  said : 

"  It  is  obvious  that  if  the  name  dedicated  to  the  public,  either  as 
a  consequence  of  the  monopoly  or  by  the  voluntary  act  of  the  party, 
has  a  two-fold  significance,  one  generic  and  the  other  pointing  to 
the  origin  of  manufacture,  and  the  name  is  availed  of  by  another 
without  clearly  indicating  that  the  machine  upon  which  the  name 
is  marked  is  made  by  him,  then  the  right  to  use  the  name  because 
of  its  generic  signification  would  imply  a  power  to  destroy  any 
good  will  which  belonged  to  the  original  maker.  It  would  import, 
not  only  this,  but  also  the  unrestrained  right  to  deceive  and  defraud 
the  public  by  so  using  the  name  as  to  delude  them  into  believing  that 
the  machine  made  by  one  person  was  made  by  another,"     *     *     * 

It  is  to  be  observed,  however,  that  the  question  we  are  consider- 
ing is  not  whether  this  record  makes  out  a  case  of  false  repre- 
sentation, or  perfidious  dealing,  or  unfair  competition,  but  whether 
appellant  had  the  exclusive  right  to  use  the  word  "Elgin"  as 
against  all  the  world.  Was  it  a  lawfully  registered  trade-mark? 
If  the  absolute  right  to  the  word  as  a  trade-mark  belonged  to 
appellant,  then  the  circuit  court  had  jurisdiction  under  the  statute 
to  award  relief  for  infringement;  but  if  it  were  not  a  lawfully 
registered  trade-mark,  then  the  circuit  court  of  appeals  correctly 
■held  that  jurisdiction  could  not  be  maintained. 

And  since,  while  the  secondary  signification  attributed  to  its  use 
of  the  word  might  entitle  appellant  to  relief,  the  fact  that,  pri- 
marily, it  simply  described  the  place  of  manufacture,  and  that 
appellees  had  the  right  to  use  it  in  that  sense,  though  not  the 
right  to  use  it  without  explanation  or  qualification,  if  such  use 
would  be  an  instrument  of  fraud,  we  are  of  opinion  that  the  gen- 
eral rule  applied,  and  that  this  geographical  name  could  not  be 
employed  as  a  trade-mark,  and  its  exclusive  use  vested  in  appel- 
lant, and  that  it  was  not  properly  entitled  to  be  registered  as 
such.    *     *     * 

The  Circuit  Court  of  Appeals  was  right,  and  its  decree  is 
affirmed.^^ 

1*  The  term  "American  Girl"  as  applied  to  women's  shoes  made  and  sold 
in  the  United  States  is  descriptive  and  not  geogTaphical,  and  hence  subject 
to  use  as  a  trademark.  Hamilton-Brown  Shoe  Co.  v.  Wolf  Brothers  &  C?o., 
240  U.  S.  251,  36  Sup.  Ct.  Eep.  269,  60  L.  Ed.  629. 

See  Childs'  Personal  Property,  §  100. 


Patents,  Copyright,  GooD\\nLL,  Trademarks,  Etc.       221 

Tradename.  ^^ 

7 

Distinction  Between  Trademark  and  Tradename. 
N.  K.  FAIRBANK  CO  v.  LUCKEL,  KING  &  CAKE  SOAP  CO. 
102  Fed.  327.     1900. 
The  facts  are  stated  in  the  opinion. 

Haw-ley,  District  Judge — This  is  a  suit  in  equity.  It  was  insti- 
tuted to  restrain  the  infringement  of  the  trade-mark  or  trade-name 
"Gold  Dust,"  used  to  designate  a  washing  powder  manufactured 
and  sold  on  the  market  by  appellant.  The  alleged  infringement 
consists  of  the  use  of  the  name  "Gold  Drop"  to  designate  a  wash- 
ing powder  manufactured  and  sold  by  appellee.  The  circuit  court 
held  that  appellant  was  not  entitled  to  the  relief  prayed  for,  dis- 
missed its  bill,  and  rendered  a  decree  in  favor  of  respondent  (88 
Fed.  694),  from  which  the  present  appeal  is  taken. 

The  bill,  after  alleging  complainant's  use,  appropriation,  and 
right  to  the  trade-mark  or  trade-name  of  "Gold  Dust"  to  identify 
its  washing  soap  or  powder  since  the  years  1887,  avers  that  respond- 
ent, since  the  1st  day  of  July,  1897,  with  full  knowledge  of  com- 
plainant's rights  in  the  premises,  "wholly  without  your  orator's 
consent,  intending  to  injure  and  defraud  your  orator,  and  to  divert 
to  itself  the  business  and  profits  connected  with  the  sale  of  'Gold 
Dust'  washing  powder  which  of  right  belong  to  your  orator,  has 
knowingly  and  fraudently  made  use,  in  connection  with  the  manu- 
facture and  sale  of  a  washing  or  soap  powder  by  said  defendant 
manufactured,  of  the  w^ords  or  designation  'Gold  Drop,'  and  has 
caused  washing  or  soap  powder  by  it,  the  said  defendant,  manu- 
factured, to  be  offered  and  sold  as  'Gold  Dust'  washing  powder, 
and  as  and  for  the  washing  powder  of  your  orator's  manufacture, 
and  continues  so  to  do,  notwithstanding  your  orator's  protest  in 
the  premises,  in  violation  of  your  orator's  rights  aforesaid,  and  con- 
trary to  equity,  to  your  orator's  great  loss  and  injury  actually  sus- 
tained;"  that  the  acts  of  the  respondent  are  unlawful,  and  "tend  to 
cause  the  washing  or  soap  powder  of  the  defendant,  put  up  afore- 
said, to  be  mistaken  for  your  orator's  'Gold  Dust'  washing  powder, 
and  to  be  substituted  therefor  by  unscrupulous  persons,  and  because, 
all  and  singular,  they  enable  and  promote  an  unfair  competition, 
and  a  false  and  fraudulent  sale  of  the  defendant's  washing  powder, 


222  Cases  on  Person^yl  Property 

as  and  for  your  orator's  'Gold  Dust'  washing  powder,  to  your  or- 
ator's great  loss  and  injury,"  and  "constitutes  a  fraudulent,  in- 
equitable, and  unfair  competition  in  business,  and  a  trespass  upon, 
and  violation  of,  tbe  good  will  of  your  orator's  business,  connected 
with  the  manufacture  and  sale  of  its  'Gold  Dust'  wasliing  powder, 
against  which  your  orator  is  equitably  entitled  to  he  protected,  and 
which  fraudulent,  inequitable,  and  unfair  competition  and  trespass 
upon  your  orator's  good  will  it  prays  may  be  prevented  and  re- 
strained according  to  the  course  of  equity,"  etc.  The  answer  denies 
having  committed  any  wrongful,  illegal,  or  fraudulent  acts,  or  any 
acts,  in  violation  of  complainant 's  rights  in  the  premises,  and  for  a 
separate  answer  alleges : 

"That  on  or  about  July,  1894,  defendant  began  to  manufacture 
a  certain  washing  compound  or  soap  powder,  and  that  on  or  about 
said  time  defendant  offered  said  soap  powder  for  sale  in  the  mar- 
ket, and  has  continued  so  to  do,  without  interruption,  ever  since; 
that  defendant  placed  upon  said  package  of  washing  compound 
aforesaid  the  name  or  designation  'Gold  Drop,'  and  wrapped  the 
said  package  in  paper  of  an  entirely  different  color  and  character 
from  that  of  the  plaintiff,  the  general  effect  of  which  said  wrapper 
was  such  that  the  packages  of  plaintiff  and  defendant  might  easily 
be  distinguished,  and  in  truth  the  defendant  avers  that  there  are 
no  common  features  whatever  between  the  packages  of  plaintiff 
and  defendant,  but  that  said  packages  cannot  be  mistaken  one  for 
another;  *  *  *  that  said  soap  powder,  the  package  in  which 
the  same  was  sold,  the  wrapper  thereon,  designation  'Gold  Drop,' 
figures,  color,  and  general  eft'ect  of  said  package  was  produced,  and 
said  powder  sold  with  said  wrapper  as  aforesaid,  without  any 
intention  to-  enter  into-  unfair  competition  with  the  plaintiff,  or  to 
violate  any  of  the  rights  of  the  plaintiff  whatever ;  and  the  defend- 
ant avers  that  the  said  name  'Gold  Drop'  on  said  package,  the 
color,  the  lettering,  and  the  general  effect  of  said  package,  do  not 
in  any  manner  whatever  violate  any  of  the  rights  of  the  plaintiff, 
or  infringe  upon  the  word  or  name  or  designation  'Gold  Dust,' 
nor  the  package  in  which  said  plaintiff  puts  up  its  said  washing 
compound  or  soap  powder  under  the  name  'Gold  Dust.'  " 

There  is  no  substantial  conflict  in  the  evidence  produced  at  the 
trial.  The  questions  as  to  priority  of  use,  and  expenditure  and 
popularization  of  the  washing  powder  under  the  name  of  "Gold 
Dust,"  by  appellant,  are  undisputed. 

*  *  *  The  controlling  question  is  whether  or  not  the 
respondent  has  "knowingly  put  into  the  hands  of  the  retail  dealer 


Patents,  Copyright"  GrOOD\^nLL,  Tradem-vrks,  Etc.       223 

the  means  of  deceiving  the  ultimate  purchasers. "  N.  K.  Fairbank 
Co.  V.  R.  W.  Bell  Mfg.  Co.,  23  C.  C.  A.  554,  77  Fed.  869,  878,  and 
authorities  there  cited;  New  England  Awl  &  Needle  Co.  v.  Marlboro 
Awl  &  Needle  Co.  (Mass.)  46  N.  E.  3S6;  Yon  Mumm  v.  Frash 
(C.  C.)  56  Fed.  830,  838.  The  fact  that  "Gold  Drop"  was  sold  to 
retail  dealers  for  a  less  price  furnished  an  incentive  and  induce- 
ment to  retail  dealers  to  dispose  of  "Gold  Drop"  instead  of  "Gold 
Dust,"  as  they  therebj^  gained  a  greater  profit  for  themselves. 

The  law  is  well  settled  that  in  suits  of  this  character  the  inten- 
tion of  the  respondent  in  adopting  the  style  of  package,  or  choosing 
a  name  for  a  similar  product,  is  to  a  certain  extent  immaterial.  It 
is  not  essential  to  the  right  of  complainant  to  an  injunction  to  show 
absolute  fraud  or  willful  intent  on  the  part  of  the  respondent. 
Upon  familiar  principles,  it  will  be  presumed  that  the  respond- 
ent contemplated  the  natural  consequences  of  its  own  acts.  If  the 
acts  of  respondent  in  the  adoption  of  the  name  of  "Gold  Drop" 
constituted  an  infringement  of  the  trade-mark  or  trade-name  of 
the  complainant,  and  it  was  put  on  the  market  in  such  a  manner 
as  to  interfere  wath  the  legal  rights  of  complainant,  to  its  loss  and 
injury,  it  w^ould  be  entitled  to  an  injunction,  irrespective  of  the 
question  of  any  testimony  as  to  actual  fraud  or  willful  intent.  The 
court  must  determine  the  intent  from  respondent's  acts  and  the 
results  produced  thereby.  R.  Heinisch  &  Sons  v.  Boker  (C.  C.)  86 
Fed.  766,  769. 

It  is  claimed  that  the  respondent 's  packages  are  to  the  eye  unlike 
complainant's.  Admit  it.  There  are  many  cases  where  respond- 
ent's packages  and  labels  are  to  the  eye  so  distinctive  and  unlike 
the  packages  of  complainant  as  not  to  deceive  purchasers  exercising 
ordinary  care,  who  are  accustomed,  to  the  size  of  the  packages  and 
the  general  characteristics  of  the  labels.  But  how  about  the  stranger 
w^ho  knows  nothing  about  the  packages  or  the  labels,  but  has  read 
the  advertisement,  and  remembers  the  name  "Gold  Dust"?  Is  it 
not  fair  to  assume  in  a  case  like  this  that  a  decided  majority  of 
the  purchasers  would  not  ask  for  a  specific  size  of  a  package  with 
a  certain  designated  label  ?  Would  they  not  call  for  the  article  by 
name?  It  must  constantly  be  borne  in  mind  that  there  are  two 
kinds  of  trade-marks,— one  of  peculiar  pictures,  labels,  or  symbols ; 
the  other  in  the  use  of  a  name.  The  infringement  charged  herein 
is  in  the  adoption  by  the  respondent  of  both  the  trade-name  and 
trade-mark.  So  far  as  the  name  "Gold  Dust"  is  concerned,  the 
dissimilarity  of  the  labels,  size  of  packages,  and  character  of  syra- 


224  Cases  on  Personal,  Property 

bols  can  make  no  essential  difference.     As  was  said  in  Hier  v. 
Abrahams,  82  N.  Y.  519,  525 : 

' '  The  trade-mark  consisted  in  the  word  simply,  and  the  plaintiffs 
might  have  printed  it  on  any  form  of  label  they  might  fancy,  with- 
out losing  the  protection  of  the  law.  The  defendants  had  no  right 
to  adopt  it  by  merely  putting  it  on  a  label  of  different  fashion 
from  that  which  the  plaintiffs  had  been  in  the  habit  of  using." 

See,  also,  Battle  v.  Finlay  (C.  C.)  45  Fed.  796;  N.  K.  Fairbank 
Co.  V.  Central  Lard  Co.  (C.  C.)  64  Fed.  133,  136. 

The  trade-name  differs  from  the  trade-mark  in  this:  that  one 
appeals  to  the  ear  more  than  to  the  eye.  The  advertisements  of  the 
name  were  for  the  purpose  of  having  the  intended  purchaser  ask 
for  "Gold  Dust"  without  his  having  any  knowledge  of  the  character 
of  the  label  on  the  package  he  was  to  receive,  and  in  this  sense  the 
fact  that  the  infringer  of  the  name  used  different  devices  and  sym- 
bols would  have  no  great  force.  The  imitation  of  the  name  ' '  Gold 
Dust,"  by  which  the  soap  or  washing  powder  of  complainant  was 
known,  would  constitute  an  infringement,  because  purchasers  would 
be  liable  to  be  misled  who  had  no  knowledge  of  the  article  except  the 
advertised  name  as  being  the  best  soap  or  washing  powder  in  the 
market.  It  is  not  unusual  for  a  certain  specific  article  advertised 
extensively,  of  reputed  excellence,  to  become  publicly  known  and 
called  for  by  the  name  which  is  more  readily  retained  in  the 
memory.  This  is  one  of  the  reasons  why  respondent  selected  the 
name  of  "Gold  Drop," — "on  account  of  its  being  short;  good  for 
advertising,  and  easy  to  remember. ' ' 

Many  precautions  were  taken  by  respondent  to  avoid  imitating 
complainant's  label.  Is  it  not  peculiarly  significant  that  no  efforts 
whatever  were  made  in  this  direction  with  reference  to  the  selection 
of  a  name  totally  dissimilar  from  that  of  "Gold  Dust"?  Why  was 
"Gold  Drop"  selected?  There  were  plenty  of  other  names  that 
were  short  and  easy  to  remember.  Other  manufacturers  of  wash- 
ing soap  had  found  no  difficulty  in  this  regard;  for  instance: 
* '  Pearline ; "  "  Babbit,  1776, ' '  etc.  When  these  facts  are  considered, 
is  it  not  reasonably  clear  that  in  selecting  "Gold  Drop,"  which 
conveys  to  the  mind  so  close  an  imitation  of  "Gold  Dust,"  there 
was  some  intention  or  design  upon  the  part  of  respondent  to  impose 
"Gold  Drop"  upqn  the  public  as  that  of  "Gold  Dust,"  or,  at  least, 
to  obtain  some  advantage  or  benefit  from  complainant's  advertised 
trade-name  "Gold  Dust"?  Was  not  this  result  accomplished 
whether  so  intended  or  not  ? 

These  general  views  bring  us  directly  to  what  we  conceive  to  be 


Patents,  Copyright,  Good\vill,  TRiiDEMAKKS,  Etc.       225 

the  controlling  question  in  this  case.  In  the  light  of  the  evidence, 
and  of  all  the  surrounding  circumstances  presented  herein,  are  the 
names  "Gold  Dust"  and  ''Gold  Drop"  so  similar  in  sound  as  to 
deceive  the  unwary  or  mislead  an  unsuspecting  customer  to  accept 
"Cold  Drop"  for  "Gold  Dust"?  This  is  the  test  that  has  often 
been  applied  in  cases  of  this  character. 

In  Celluloid  Mfg.  Co.  v.  Cellonite  Mfg.  Co.  (C.  C.)  32  Fed.  94,  97, 
Mr.  Justice  Bradley  said : 

"Similarity,  not  identity',  is  the  usual  recourse  when  one  party 
seeks  to  benefit  himself  by  the  good  name  of  another.  What  simi- 
larity is  sufficient  to  effect  the  object  has  to  be  determined  in  each 
case  by  its  own  circumstances.  AYe  may  say,  generally,  that  a  simi- 
larity which  would  be  likely  to  deceive  or  mislead  an  ordinary 
unsuspecting  customer  is  obnoxious  to  the  law." 

It  may  be  said  that  if  one  stops  to  reflect  upon  the  names  ' '  Gold 
Dust ' '  and  ' '  Gold  Drop, ' '  and  listens  to  the  sound,  he  will  discover 
that  the  names  are  not  entirely  similar.  A  layman,  as  well  as  a 
lawyer  or  a  judge,  might  so  decide  upon  a  careful  inspection  and 
reading  of  the  names.  But  in  determining  that  question  we  must 
put  ourselves  in  the  place  of  a  purchaser  of  ordinary  caution, 
who  asks  for  a  washing  powder  called  "Gold  Dust,"  and  from 
his  standpoint  determine  whether  he  would  be  liable  to  be  misled 
or  deceived  by  the  name  "Gold  Drop."  Glen  Cove  Mfg.  Co.  v. 
Ludeling  (C.  C.)  ,  22  Fed.  823;  N.  K.  Fairbank  Co.  v.  R.  ^Y. 
BeU  Mfg.  Co.,  23  C.  C.  A.  554,  77  Fed.  869;  Manufacturing  Co. 
V.  Simpson,  54  Conn.  527,  545,  9  Atl.  395;  Colman  v.  Crump, 
70  N.  Y.  573,  578. 

The  question  whether  complainant's  trade-name  of  the  words 
"Gold  Dust"  has  been  appropriated  by  respondent's  use  of  the 
words  "Gold  Drop,"  separate  and  distinct  from  the  use  of  symbols 
and  devices  adopted  by  complainant,  may  be  said  to  be  a  close  one. 
But,  after  a  careful  examination  of  the  numerous  authorities  cited 
by  the  respective  counsel  upon  this  subject,  we  are  of  opinion  that 
it  must  be  answered  in  the  aflSrmative.  It  is  true  that  in  many 
of  the  cases  the  alleged  infringer  dressed  the  words  relied  upon 
with  such  accessories  that  made  it  clear  that  the  name  used  might 
be  mistaken  for  the  complainant's  words,  and  the  courts  in  such 
cases  have  usually  placed  their  conclusions  upon  such  grounds.  The 
following  cases  .shed  some  light  upon  the  similarity  of  names  that 
have  been  held  to  be  infringements : 

In  Glen  Cove  Mfg.  Co.  v.  Ludeling  (C.  C),  22  Fed.  823,  825, 
the  contesting  parties  were  both  engaged  in  the  manufacture  of 
C.  P.  P.— 15 


226  Cases  on  Personal  Property 

com  flour  for  food.  Complainant  adopted  and  used  the  word 
"Maizena";  respondents,  "Maizharina."  The  court  held  that  the 
defendant's  word  and  picture,  as, applied  by  him  to  the  packages 
of  his  corn  flour,  in  connection  with  the  similarity  of  his  packages 
in  form,  size,  color,  printing,  and  other  characteristics  to  the  com- 
plainant's, were  well  calculated  to  lead  pui'chasers  to  confuse  the 
identity  of  the  products  of  the  respective  parties.     *     *     * 

The  conclusions  we  have  reached  upon  this  point  are  not  in 
opposition  to  the  views  expressed  by  the  court  in  Coats  v.  Thread 
Co.,  149  U.  S.  562,  565,  13  Sup.  Ct.  966,  37  L.  Ed.  847 ;  Sterling 
Remedy  Co.  v.  Eureka  Chemical  &  Mfg.  Co.  (C.  C),  70  Fed.  704, 
affirmed  upon  appeal  in  25  C.  C.  A.  314,  80  Fed.  105,  and  Proctor 
&  Gamble  Co.  v.  Globe  Refining  Co.,  34  C.  C.  A.  405,  92  Fed.  357, 
upon  which  respondent  chiefly  relies.  These  cases  were  decided 
on  the  dissimilarity  of  the  labels  used  by  the  respective  parties 
and  other  clearly-distinguishing  features  of  the  signs,  symbols,  and 
colors  used  thereon.  The  first  case  related  to  spool  thread  of  "six 
cords.'*    The  court  said : 

"The  controversy  between  the  two  parties  *  *  *  is  reduced 
to  the  single  question  whether,  comparing  the  two  designs  upon 
the  main  or  upper  end  of  the  spool,  there  is  such  resemblance  as 
to  indicate  an  intent  on  the  part  of  defendants  to  put  off  their 
thread  upon  the  public  as  that  of  the  plaintiffs',  and  thus  to 
trade  upon  their  reputation." 

The  second  case  related  to  certain  medicinal  tablets  for  the  cure 
of  the  tobacco  habit.  The  complainant  used  the  trade-mark  "No- 
To-Bac"  and  the  defendant  "Baco-Curo."  The  court  with  refer- 
ence to  these  names  said  it  was  not  ''seriously  claimed  that  they 
are  the  same,  or  so  similar  that  one  could  well  be  mistaken  for 
the  other."  The  third  was  a  soap  case.  The  complainant's  trade- 
mark was  impressed  upon  a  wrapper  or  label  used  for  covering 
cakes  of  washing  soap  known  to  the  trade  as  "Everj^day  Soap"; 
on  the  wrapper  or  label  of  defendant's  cakes  the  words  were 
* '  Everybody 's  Soap. ' '  The  case  was  disposed  of  by  the  distinguish- 
ing features  of  the  respective  labels.  The  court  said :  ''The  appel- 
lant relies  not  so  much  upon  the  infringement  of  its  trade-mark 
as  upon  its  complaint  that  the  use  by  the  defendant  of  its  label 
is  an  unfair  competition  in  trade."  That  case  differs  from  the  case 
in  hand  in  this:  that  there  the  appeal  was  taken  from  an  order 
denying  a  preliminary  injunction,  and  the  question  to  be  deter- 
mined was  whether  the  court  below  had  improvidently  exercised 
its  discretion,  "and  not  whether,  upon  the  final  hearing,  upon  full 


Patents,  Copyright,  Goodwill,  Trademarks,  Etc.       227 

view  of  all  the  facts  in  the  case,  this  court  would,  upon  the  evidence 
before  it,  reach  the  same  conclusion  as  that  of  the  court  below." 
Here  we  have  the  whole  case  before  us  for  a  decision  upon  its 
merits,  and  upon  the  whole  case  we  are  of  opinion  that  the  coui-t 
erred  in  dismissing  the  bill  and  refusing  to  grant  an  injunction. 
The  decree  of  the  circuit  court  is  reversed,  and  cause  remanded, 
AA^th  directions  to  enter  a  decree  in  favor  of  appellant  in  accordance 
with  the  views  expressed  in  this  opinion, ^^ 


/ 


P 


FINNEY  ORCHESTRA  v.  FINNEY'S  FAMOUS 
ORCHESTRA  et  al. 

161  Mich.  289,  126  N.  W.  198,  28  L.  R.  A.  (N.  S.)  458.    1910. 

The  facts  are  stated  in  the  opinion. 

McAlvay,  J. — The  parties  to  this  controversy  are  Michigan  cor- 
porations. The  incorporators  of  complainant  for  many  years  before 
incorporation  acted  together  in  a  voluntary  association  under  the 
same  name  as  incorporated,  and  claim  that  defendant,  without  any 
right,  and  intending  to  injure  their  corporation  in  its  business,  etc., 
wrongfully  adopted  the  name  of  "Finney's  Famous  Orchestra," 
and  have  by  falsely  claiming  to  be  the  original  Finney's  Orchestra 
greatly  injured  complainant  in  its  business.  Complainant  claims 
the  sole  right  to  use  the  name  ** Finney's  Orchestra,"  and  filed  its 
bill  of  complaint  against  defendant,  asking  that  it  be  perpetually 
enjoined  from  using  the  name  "Finney's  Orchestra"  or  the  name 
"Finney"  in  any  way,  or  representing  itself  to  be  the  original 
"Finney's  Orchestra."  Defendant  answered  this  bill  of  complaint 
by  answer  in  the  nature  of  a  cross-bill,  praying  affimative  relief,  and 
the  benefit  of  a  demurrer.  *  *  *  The  issues  joined  were  heard 
before  the  Wayne  circuit  court,  in  chancery,  and  a  decree  granted 
to  complainant.  Defendant  appeals.  The  main  contention  in  the 
case  is  upon  the  facts  presented. 

"We  agree  with  the  findings  and  conclusion  of  the  trial  judge. 
The  evidence  preponderates  greatly  in  favor  of  complainant,  the 
membership  of  which  includes  all  but  three  of  the  entire  number 
of  a  voluntary  association,  known  since  the  year  1899  by  the  name 
under  which  they  have  now  become  a  legal  organization  under  the 

15  See  Childs'  Personal  Property,  §§97,  101,  10f5. 


228  Cases  on  Personal.  Property 

laws  of  this  state.  Theodore  Finney  during  his  lifetime  organized 
and  conducted  an  orchestra  known  as  "Finney's  Orchestra"  in 
the  year  1864.  This  he  continued  to  manage  and  conduct  until 
his  death,  April  7,  1899.  By  his  will  he  gave  his  music  and  musical 
instruments  to  his  friend,  Frank  Mosby,  with  the  request  ' '  to  keep 
up  the  organization  of  the  Finney  Orchestra  during  his  natural 
life."  Mosby  proceeded  at  once  to  do  this  with  the  assistance  of 
his  fellow  associates.  The  old  members,  and  such  as  were  con- 
sidered competent  by  them  to  be  added  from  time  to  time,  con- 
tinued to  act  together  with  this  common  purpose  under  the  name 
of  Finney's  Orchestra.  *  *  *  Fred  S.  Stone  was  elected  man- 
ager, until  the  election  held  in  January,  1908,  when  Mr.  Shook 
was  elected  to  that  office  by  a  large  majority.  Mr.  Stone 's  resigna- 
tion was  accepted  January  18,  1908.  Two  of  his  brothers  also 
withdrew.  *  *  *  Twenty-three  remaining  members,  desiring 
to  become  a  body  corporate  known  as  "Finney's  Orchestra,"  under 
the  law  of  this  state,  on  January  25,  1908,  made,  executed,  and 
filed  articles  of  association  in  the  office  of  the  Secretary  of  State, 
which  after  being  amended  to  conform  with  the  statute  were  finally 
recorded  February  7,  1908.  In  the  meantime  ex-Manager  Stone 
and  three  brothers  incorporated  as  "Finney's  Famous  Orchestra," 
on  January  27,  1908,  and  this  organization  holding  itself  out  as 
the  "Original  Finney's  Orchestra"  has  caused  the  injuries  com- 
plained of.  It  will  be  of  no  benefit  to  the  profession  to  review  this 
evidence.  Suffice  it  to  say,  we  find  no  single  contention  of  defend- 
ant sustained.  It  may  be  fairly  inferred  from  the  record  that 
the  only  reason  for  the  organization  of  defendant  association  was 
to  accomplish  exactly  what  is  charged  in  the  bill  of  complaint. 
The  name  of  this  organization  was  the  property  of  those  who  made 
it  valuable,  and  its  use  by  others  ' '  different  from  those  who  earned 
a  reputation  thereunder  would  be  a  fraud  upon  the  public." 
Messer  v.  Fadettes,  168  Mass.  140-148,  46  N.  E.  407,  37  L.  R.  A. 
721,  60  Am.  St.  Rep.  371.  Such  trade-names  are  protected  on  the 
ground  of  unfair  competition.  Hopkins,  Unfair  Trade,  §§  52,  53; 
Weinstock  et  al.  v.  Marks,  109  Cal.  529-537,  42  Pac.  142,  30  L.  R.  A. 
182,  50  Am.  St.  Rep.  57.  In  the  last  case  cited  the  court  said: 
"Although  there  can  be  no  property  right  in  a  trade-name  which 
is  not  subject  to  a  trade-m-ark,  yet  it  is  a  fraud  on  a  person  who 
has  established  a  trade  and  carried  it  on  under  a  given  name  that 
some  other  person  should  assume  the  same  name  or  the  same  name 
with  a  slight  alteration  in  such  a  way  as  to  induce  persons  to  deal 


Patents,  Copybight,  GtOOdwill,  Trademarks,  Etc. 


229 


^•ith  him  in  the  belief  that  they  are  dealing  with  one  who  has  given 
a  reputation  to  the  name ;  and  an  injunction  will  issue  to  prevent 
such  fraudulent  infringement  of  the  trade-name." 

The  decree  of  the  circuit  court  is  affirmed,  with  costs.^^ 

16  See  Childs'  Personal  Property,  §  101. 


/^ 


CHAPTER  VI. 
LIMITATIONS   ON  AND  INTERESTS  IN  PROPERTY 

Ownership. 
Expert  Wit7iess. 
DIXON  V.  PEOPLE. 


/- 


168  111.  179,  48  N.  E.  108,  39  L.  B.  A.  116.     1897. 
The  facts  are  stated  in  the  opinion. 

Magruder,  J.— At  the  January  term,  1895,  of  the  circuit  court 
of  Sangamon  county,  the  ease  of  Olive  Purely  against  the  city  of 
Springfield  was  on  trial.  It  was  a  suit  for  damages  for  injury 
caused  by  a  defective  sidewalk.  The  appellant,  Dr.  J.  N.  Dixon, 
was  called  as  an  expert  witness  on  the  part  of  the  city,  and  testified 
that  he  was  a  physician  and  surgeon;  that  he  had  practiced  as 
such  21  years,  and  19  of  them  in  Springfield ;  that  he  was  surgeon 
for  five  railroads  running  into  said  city,  and  had  been  surgeon 
from  2  to  17  years ;  and  that  he  was  a  graduate  of  regular  schools 
of  medicine,  and  had  been  practicing  general  surgery  for  18  years. 
(The  witness  w^as  then  asked  a  hypothetical  question  concerning 
the  case,  which  question  the  witness  refused  to  answer  on  the 
ground  that  he  was  an  expert  witness  and  hence  entitled  to  greater 
pay  than  an  ordinary  witness,  whereupon  he  Avas  found  giiilty  of 
contempt  and  fined  the  sum  of  $25.    The  witness  appeals.) 

The  question  in  this  case  is  whether  a  physician,  who  has  been 
subpoenaed  and  is  interrogated  as  an  expert  witness  only,  can  be 
punished  as  for  a  contempt  for  refusing  to  testify,  when  no  com- 
pensation greater  than  that  allowed  to  an  ordinary  witness  has 
been  paid  to  him,  or  promised  to  him.  The  question  here  involved 
has  never  been  directly  decided  by  this  court.  *  *  *  Our 
statute  treats  all  witnesses  alike,  regardless  of  their  "countenance 
or  calling,"  whether  they  be  physicians  or  lawyers  or  ordinary 

230 


Limitations  on  and  Interests  in  Property  231 

citizens,  so  far  as  the  question  of  the  taxation  of  their  fees  as  costs 
is  concerned.  Witnesses  are  not  entitled  to  special  privileges  on 
account  of  their  rank  or  employment,     *     *     * 

The  grounds  upon  which  the  right  to  such  extra  compensation 
on  the  part  of  expert  witnesses  has  been  sustained  have  generally 
been  three  in  number.     *     *     * 

The  second  ground  upon  which  the  claim  for  such  extra  com- 
pensation is  based  is  that  the  skill  and  accumulated  knowledge 
of  the  expert  are  his  property,  and  that  a  man's  property  should 
not  be  taken  without  just  compensation.  Various  definitions  have 
been  given  of  property.  Webster  defines  property  to  be  ''the 
exclusive  right  of  possessing,  enjoying,  and  disposing  of  a  thing." 
This  court  has  adopted  this  definition  in  Chicago  &  W.  I.  R.  Co.  v. 
Englewood  Conn.  Ry.  Co.,  115  111.  375,  4  N.  E.  246.  Blackstone 
says,  "Property  consists  in  the  free  use,  enjoyment,  and  disposal 
of  one's  acquisitions,  without  any  control  or  diminution,  save  only 
by  the  laws  of  the  land."  1  Bl.  Comm.  138.  It  has  also  been  said 
that  property,  in  its  legal  sense,  is  not  the  thing  itself,  but  cer- 
tain rights  in  and  over  the  thing,  those  rights  being  (1)  user; 
(2)  exclusion;  (3)  disposition.  Lewis,  Em.  Dom.  §  54.  This  court 
has  also  said,  in  discussing  the  right  to  make  and  enforce  contracts 
as  being  included  in  the  right  to  acquire  property,  that  labor  is 
property,  and  that  the  laborer  has  the  same  right  to  sell  his  labor, 
and  to  contract  with  reference  thereto,  as  has  any  other  property 
owner.  Ritchie  v.  People,  155  111.  98,  40  N.  E.  454.  Labor  is 
defined  by  Webster  to  be  "ph3^sieal  toil  or  bodily  exertion,"  and 
also  to  be  "hard  muscular  effort  directed  to  some  useful  end,  as 
agriculture,  manufactures  and  the  like."  He  also  defines  labor 
to  be  "intellectual  exertion;  mental  effort,  as  the  labor  compiling 
a  history. '  *  It  is  not  exactly  accurate  to  say  that  the  mere  abstract 
knowledge  acquired  in  the  study  of  a  special  employment  is  of 
itself  property.  It  is  the  right  to  apply  that  knowledge  to  the 
accomplishment  of  a  particular  result  which  constitutes  property. 
For  instance,  if  the  appellant  had  been  required  to  answer  a  ques- 
tion put  to  him  with  a  view  of  prescribing  a  remedy  for  the  relief 
of  Mrs.  Purdy,  the  plaintiff  in  the  suit  in  which  he  was  called  to 
testify  as  a  witness,  then  it  might  be  said,  if  he  was  not  offered 
any  compen.sation,  that  he  was  deprived  of  a  property  right.  But 
where  a  physician  is  asked  a  hypothetical  question,  and  is  called 
upon  to  give  his  opinion  upon  the  facts  stated  in  the  hypothetical 
question  while  he  is  testifying  as  a  witness  in  court,  he  is  not  thereby 
required  to  practice  his  healing  art.    He  is  merely  making  a  state- 


232  Cases  on  Personal  Property 

ment  for  the  purpose  of  enabling  the  court  and  the  jury  to 
understand  correctly  a  case  which  is  before  the  court.  There  is 
no  infringement  here  of  a  property  right.  It  may  be  conceded 
that  in  a  certain  sense  the  knowledge  of  the  physician,  acquired 
by  special  study,  is  property ;  but  the  question  here  is,  not  so  much 
whether  certain  knowledge  is  property,  as  whether  the  require- 
ment that  he  shall  answer  a  hypothetical  question  is  a  taking  of 
his  property.  Where  he  is  required  to  make  an  application  of  his 
knowledge  to  a  particular  case,  so  as  to  secure  a  particular  result, — 
such  as,  for  instance,  the  curing  of  a  disease  or  the  healing  of  a 
wound, — then  he  would  undoubtedly  be  entitled  to  compensation. 
A  physician  or  surgeon  cannot  be  punished  for  a  contempt  for 
refusing  to  make  a  post  mortem  examination  unless  paid  therefor; 
nor  can  he  be  required  to  prepare  himself  in  advance  for  testify- 
ing in  court,  by  making  an  examination,  or  performing  an  opera- 
tion, or  resorting  to  a  certain  amount  of  study,  without  being  paid 
therefor.  But  when  he  is  required  to  answer  a  hj^jothetical 
question,  which  involves  a  special  knowledge  peculiar  to  his  calling, 
he  is  merely  required  to  do  what  every  good  citizen  is  required  to 
do  in  behalf  of  public  peace  and  public  order,  and  in  promotion 
of  public  good.  Counsel  for  appellant  states  that  many  of  the 
cases  which  have  held  that  expert  witnesses  can  be  required  to 
testify  without  being  paid  are  criminal  cases,  where  the  interest 
of  the  state  and  the  interest  of* the  public  demand  of  the  physician 
that  he  should  yield  up  something  of  his  knowledge  for  the  benefit 
of  society  at  large.  This  position,  however,  is  inconsistent  with 
the  contention  that  when  an  expert  witness  is  required  to  testify 
without  compensation  his  property  right  is  interfered  with.  *  *  * 
Upon  this  subject,  Mr.  Rogers,  in  his  able  and  exhaustive  work  on 
Expert  Testimony  (2d  Ed.,  p.  424,  §188),  says:  "There  can  be 
no  doubt  that  professional  men  are  not  entitled,  in  this  country,  to 
claim  any  additional  compensation  when  testifying  as  ordinary- 
witnesses  to  facts  which  happened  to  fall  under  their  observation. 
But  another  question  arises  when  they  are  summoned  to  testify 
as  to  facts  of  science  with  which  they  have  become  familiar  by 
means  of  special  study  or  investigation,  or  to  express  opinions, 
based  upon  the  skill  acquired  from  special  researches,  as  to  con- 
clusions which  ought  to  be  drawn  from  certain  given  facts. 
Whether  they  can  be  compelled  to  testify  in  such  cases  when  no 
other  compensation  has  been  tendered  than  the  usual  fees  of  ordi- 
nary witnesses  testifying  to  ordinary  facts  is  a  point  upon  which 
the  cases  are  not  in  harmony.    In  this  country  the  cases  are  nearly 


Limitations  on  and  Interests  in  Property  233 

balanced,  and  the  question  must  be  regarded  as  still  an  open  one, 
although  the  weight  of  authority  rather  inclines  to  the  theory  that 
the  expert  may  be  required  to  answer  the  question  without  addi- 
tional compensation."  As  has  already  been  stated,  we  prefer  to 
adopt  the  views  announced  by  the  supreme  court  of  Alabama,  and 
in  the  cases  following  the  Alabama  decision.  *  *  *  por  the 
reasons  above  stated,  we  have  arrived  at  the  conclusion  that  the 
judgments  below  were  correct.  Accordingly  the  judgments  of  the 
appellate  court  and  of  the  circuit  court  are  affirmed.    Affirmed,^ 


^i^'.rs^t^-'^" 


Potential  Existence.  . 

DICKEY  V.  WALDO. 
97  Mich.  255,  56  N.  W.  608,  23  L.  R.  A.  449.    1893. 

[This  was  an  action  by  the  plaintiffs,  John  W.  Dickey  and 
George  W.  Waldo,  against  the  defendant  for  the  conversion  of 
peaches.     Judgment  for  plaintiffs  and  defendant  appealed. 

The  facts,  as  stated  in  the  contract  between  the  parties  and  the 
findings  of  the  lower  court  are  substantially  as  follows:] 

Contract :  ' '  Articles  of  agreement,  made  this  21st  day  of  Febru- 
ary, A.  D.  1885,  between  John  Schultz,  of  the  township  of  Sauga- 
tuck,  Allegan  county,  Michigan,  of  the  first  part,  and  John  W. 
Dickey  and  Addison  Lurvey,  of  Douglas,  county,  and  state  afore- 
said, of  the  second  part,  witnesseth  as  follows:  The  said  party 
of  the  first  part  is  the  owner  of  the  west  half  of  the  east  half  of 
the  southwest  quarter  of  section  twenty-five,  township  of  Sauga- 
tuck,  aforesaid,  and  desiring  to  set  out  to  peach  trees  a  piece  just 
east  of  his  house,  and  running  back  to  his  east  line,  and  far  enough 
south  as  the  piece  is  .suitable  for  peach  trees,  but  not  to  exceed 
1,500  trees,  said  first  party  agrees  to  set  out  the  trees,  and  care  for 
and  cultivate  the  same,  in  a  good  and  workmanlike  manner,  for 
the  period  of  ten  years  from  the  date  hereof,  and  to  allow  said 
Dickey  and  Lurvey,  parties  of  the  second  part,  to  have  and  take 
one-half  of  the  crop  of  peaches  for  any  two  years  they  may  select 
during  the  aforesaid  term  of  ten  years.  Said  Schultz  agrees  that, 
if  it  shall  come  to  his  knowledge  that  any  of  the  said  trees  are 

1  See  Childs '  Personal  Property,  §  109. 


234  Cases  on  Personal,  Property 

affected  with  the  yellows,  that  he  will  immediately  dig  up  and 
burn  the  same,  root  and  branch.  Said  Dickey  and  Lurvey,  parties 
of  the  second  part,  hereby  agree,  in  consideration  of  the  agree- 
ments hereinbefore  stated,  to  be  performed  upon  the  part  of  the 
said  Schultz,  to  furnish  what  trees  may  be  needed  to  set  the  afore- 
said piece  of  land,  not  to  exceed  1,500  trees,  and  take  as  pay  there- 
for one-half  of  the  crop  of  peaches  for  any  two  years  they  may 
select.  It  is  mutually  agreed  that  said  Dickey  and  Lurvey  shall 
make  their  selection  of  the  year  when  they  will  take  the  half  of 
the  crop  on  or  before  September  15th  of  that  year.  Each  party 
hereto  are  to  pick  and  care  for  their  own  share  of  the  fruit  and 
are  to  each  take  as  near  half  of  the  crop  as  may  be;  but  at  the 
close  of  the  season  each  shall  show  up  their  total  shipments  for 
the  season,  and,  if  it  be  found  one  party  has  taken  more  than  the 
other,  the  net  proceeds  of  such  surplus  shall  be  equally  divided 
between  the  parties  hereto.  Said  Schultz  agrees  to  draw  that  half 
of  the  fruit  belonging  to  said  Dickey  and  Lurvey  to  the  boat  land- 
ing in  Douglas,  or  railroad  depot  at  Fennville,  as  they  may  direct. 
This  agreement  to  be  binding  upon  the  legal  representatives  of 
the  parties  hereto.  Said  second  party  agrees  to  furnish  a  man  to 
help  set  out  the  trees.  Witness  our  hands  and  seals.  John  W. 
Dickey.  [L,  S.]  John  Schultz.  [L.  S.]  A.  Lurvey.  [L,  S.]  In  presence 
of  Mary  Belle  Spencer,  Dyer  C.  Putnam.     *     *     * 

' '  Counsel  for  the  respective  parties  above  named  having  requested 
the  court  to  make  and  file  in  said  cause  a  finding  of  the  facts,  and 
conclusions  of  law  therefrom,  the  court,  in  compliance  with  such 
request,  finds  the  facts  in  said  cause,  as  proved  on  the  trial  thereof, 
to  be  as  follows:  (1)  That  on  the  21st  day  of  February,  A.  D. 
1885,  John  Schultz  was  the  owner  and  in  possession  of  the  west 
half  of  the  east  half  of  the  southwest  quarter  of  section  twenty-five, 
in  the  township  of  Saugatuck,  in  said  Allegan  county,  and  state 
aforesaid.  *  *  *  (3)  That,  at  the  time  said  contract  was 
entered  into,  said  parcel  of  land  described  in  said  contract  was  the 
homestead  of  said  John  Schultz  and  Deborah  Schultz,  his  wife. 
(4)  That  the  plaintiffs,  in  the  spring  of  1885,  furnished  the  peach 
trees  required  in  and  by  the  terms  of  said  contract,  and  set  them 
on  the  land  described  in  said  contract,  and  in  all  things  performed 
the  agreements  by  them  to  be  performed,  according  to  the  terms  of 
said  contract.  (5)  That  on  or  about  the  23d  day  of  April,  A.  D. 
1887,  the  said  John  Schultz  and  wife  conveyed  the  premises 
described  in  said  contract  to  the  defendant  by  warranty  deed,  with 
covenants  of  title,  and  against  incumbrances.      (6)  That,  before 


Limitations  on  and  Interests  in  Property  235 

and  at  the  time  of  the  execution  and  delivery  of  said  deed  by  said 
John  Schultz  and  wife  to  said  defendant,  he,  the  said  defendant, 
had  actual  notice  and  knowledge  of  the  existence  and  terms  of  said 
contract  between  said  Schultz  and  said  plaintiffs,  and  that,  before 
and  at  the  time  of  the  execution  and  delivery  of  said  deed,  it  was 
agreed  between  said  Schultz  and  said  defendant  that  said  defendant 
should  pay  said  Schultz  $1,850  for  said  land,  instead  of  $2,000,  the 
full  purchase  price  thereof,  and  that,  as  part  of  the  consideration 
for  the  sale  of  said  land,  said  defendant  should  settle  with  said 
plaintiffs  for  their  interest  in  the  peach  trees  on  said  land ;  *  *  * 
(7)  That  the  plaintiffs  duly  selected  the  year  1891  as  one  of  the 
years  w^hen  they  would  take  one-half  of  the  crop,  according  to 
the  terms  of  said  contract ;  that  said  defendant  was  orally  inf onned 
by  said  plaintiffs  of  such  selection  July  4,  1891,  and  that  on  or 
about  August  22,  1891,  the  said  plaintiffs  gave  said  defendant 
written  notice  of  such  selection,  and  afterwards,  and  on  or  about 
the  26th  day  of  August,  1891,  oft'ered  and  attempted  to  pick  their 
share  of  the  fruit,  but  defendant  refused  to  permit  them  to  do  so, 
and  denied  that  they  had  any  share  of  the  fruit ;  and  that  defend- 
ant took  and  converted  to  his  own  use  the  entire  crop  of  fruit 
grown  on  said  trees  during  that  year.  (8)  That  the  value  of  the 
peaches  grown  during  the  year  1891  on  the  trees  set  by  said  plain- 
tiffs on  said  land,  under  said  contract,  amounted  to  the  sum  of 
$1,541.07  at  the  time  of  the  conversion  of  the  same  by  said  defend- 
ant to  his  own  use.  *  *  *  From  the  foregoing  facts,  I  tind 
the  following  conclusions  of  law:  (1)  The  plaintiffs  are  entitled 
to  maintain  this  action,  and  the  contract  offered  in  e\'idence  between 
said  Schultz  and  said  plaintiffs  was  admissible  in  evidence.  (2) 
Said  contract  did  not  convey  to  the  plaintiff's  any  interest  in  the 
land  described  in  said  contract,  except  the  right  to  said  plaintiffs 
to  take  therefrom  one-half  of  the  crop  of  peaches  for  any  two  years 
they  might  select  during  the  period  of  ten  years  from  the  date 
of  said  contract.  (3)  The  homestead  right  of  John  Schultz  and 
wife  was  in  no  way  affected  by  said  contract,  and  the  question 
of  the  homestead  right  of  said  Schultz  and  wife  cannot  be  raised 
by  said  defendant  izi  this  action.  *  *  *  (5)  The  contract  rela- 
tion between  Schultz  and  plaintiffs  was  not  technically  a  sale  of 
the  peaches  thereafter  to  be  grown  on  said  trees  by  said  Schultz 
to  plaintiffs,  but  was  more  in  the  nature  of  a  sale  of  the  trees  by 
plaintiffs  to  Schultz;  plaintiffs  reserving,  in  writing,  one-half  of 
the  products  of  said  trees  for  any  two  years  they  might  select 
during  the  period  of  ten  years.     (6)   The  defendant,  having  notice 


236  Cases  on  Personal.  Property 

of  said  contract  before  his  purchase  of  said  land,  and  having  agreed, 
for  a  valuable  consideration,  to  recognize  the  rights  of  plaintiffs 
under  said  contract,  cannot  now  claim  that  said  contract  was  void, 
or  that  it  was  not  binding  upon  him.  (7)  The  defendant  and 
plaintiffs  were  the  owners  in  common  of  the  crop  of  peaches  grown 
on  said  trees  during  the  season  of  1891,  and  the  defendant  having 
refused  to  allow  plaintiffs  to  pick  their  share  of  said  crop,  and 
denied  that  plaintiffs  had  any  right  to  any  part  of  said  crop, 
plaintiffs  were  entitled  to  their  action  of  trover  without  and  before 
any  accounting  as  to  the  amount  of  said  crop,  or  the  share  of 
each  of  the  others  therein.  (8)  Plaintiffs  are  entitled  to  recover 
in  this  action,  and  a  judgment  should  be  rendered  in  their  favor, 
and  against  said  defendant,  for  the  said  sum  of  $770.53,  with 
interest  on  the  same  from  October  15,  1891, — $23.12, — making  a 
total  of  $793.65  with  costs  of  suit  to  be  taxed.  Geo.  M  Buck, 
Circuit  Judge.    April  15th,  1892." 

Grant,  J. — The  contract  and  the  finding  of  facts  in  this  case 
are  found  in  the  margin.  This  contract  and  the  judgment  should 
be  sustained,  unless  there  are  some  inexorable  rules  of  law  which 
stand  in  the  way.  Two  rules  are  invoked  to  defeat  the  plaintiffs' 
action :  (1)  That  the  land  upon  which  the  peach  trees  were  planted 
is  a  homestead;  that  Schultz's  wife  did  not  sign  the  contract; 
that  it  interferes  with  the  homestead  right,  and  the  contract  is 
therefore  void.  (2)  That  the  crop  which  the  plaintiffs  agreed 
to  take  in  payment  for  the  trees  was  not  in  esse  at  the  time,  and 
therefore  not  the  subject  of  sale. 

1.  We  think  there  is  no  force  in  the  first  proposition.     *     *     * 

2.  Such  contracts  are  reasonable,  and  beneficial  to  both  the 
vendor  and  the  vendee.  They  are  especially  beneficial  to  the  vendee. 
He  avoids  all  expense  except  his  labor,  runs  no  risk,  and,  if  in 
indigent  circumstances,  he  may  obtain  gains  which  would  other- 
wise be  beyond  his  reach.  Such  contracts  are  of  common  occurrence, 
and,  if  the  rigid  rules  of  law  are  against  their  validity,  there  is 
a  necessity  of  legislative  action  to  render  them  valid.  _The  rule 
of  law  is  well  established  that  things  having  no  potential  existence 

_cannot  be  the  subject  of  mortgage  and  sale.  There  are,  however, 
exceptions  to  this  rule,  as  where  a  merchant  mortgages  his  stock 
of  goods,  and  all  future  additions  thereto.  It  is  unnecessary"to~ 
cite  authorities  to  this  proposition.  The  difficulty  seems  to  arise 
in  determining  what  comes  within  the  definition  of  the  term 
''potential  existence."  The  definition  of  the  word  "potential" 
is:     ''Having  latent  power;  endowed  with  energy  adequate  to_a 


Limitations  on  and  Interests  in  Property  237 

result; efficacious i  existing;  in  possibilit;y\^not  in_act"     Sir  W. 
Hamilton  said :    ' 'Potential ^ist ence  means  merelj;^ that  the  thing 
may  be  at  some  time;  actual  existence,  that  it  now  is/'    In  the 
legal  sense,  things  are  said  to  have  a  potential  existence  when  they 
are  the  natural  product  or  expected  increase  of  something  already 
belonging  to  the  vendor.    When  one  possesses  a  thing  from  which 
a  certain  product,  in  the  veiy  nature  of  things,  may  be  expected, 
such  product,  we  think,  has  a  potential  existence.     The  following 
rule  appears  to  be  well  established  both  by  reason  and  authority, 
viz. :     That,  while  one  owns  property  from  which  such  product 
naturally  arises,  such  product  may  be  the  subject  of  sale   and^ 
mortgage!     TFe  authorities  which  thus  hold   also  recognize   the" 
other  rule"  above  stated.     The  authorities  are  by  no  means  uniform, 
but  we  think  the  conflict  in  them  has  arisen  from  a  failure  to  make 
a  proper  distinction.     In  Grantham  v.  Hawley,  Hob.  132,  it  was 
held  that  a  grant  of  that  which  the  gi-antor  has  potentially,  though 
not  actually,  is  good,  as  a  grant  by  the  lessee  of  all  the  corn  that 
shall  be  growing  on  the  land  at  the  end  of  the  term.    It  was  there 
said:    "Though  the  lessor  had  it   [the  corn]  not  actually  in  him, 
nor  certain,  yet  he  had  it  potentially,  for  the  land  is  the  mother 
and  root  of  all  fruits.     Therefore,  he  that  hath  it  may  grant  all 
fruits  that  may  arise  upon  it  after,  and  the  property  shall  pass  as 
soon  as  the  fruits  are  extant.     A  person  may  grant  all  the  tithe 
wool  that  he  shall  have  in  such  a  year,  yet  perhaps  he  shall  have 
none;  but  a  man  cannot  grant  all  the  wool  that  _s]iall  grow  upon 
his  sheep  that  he  shall  buy  hereafter,  for  there  he  hath  it  neither 
^^tu^l^^ToFiotenHallyT^     Powell,  in  his  Treatise  on  Contracts, 
says:     "Although  it  be  uncertain  whether  the  thing  granted  will 
ever  exist,  and  it  consequently  cannot  be  actually  in  the  grantor,  or 
certain,  yet  it  is  in  him  potentially,  as  being  a  thing  accessory  to 
something  which  he  actually  has  in  him,  for  such  potential  prop- 
erty may  be  the  subject  of  a  contract  executed,  as  a  grant,  or  the  like. 
*     *     *     So  a  tenant  for  life  may  sell  the  profits  of  his  lands  for 
three  or  four  years  to  come,  and  yet  the  profits  are  not  then  in 
e.sse."    It  is  held  that  a  lease  of  land,  reserving  rent,  and  which 
provides  that  all  the  crops  raised  on  the  land  during  the  term  are 
to  be  the  property  of  the  lessor  until  the  rent  is  paid,  is  valid,  and 
will  entitle  the  lessor  to  hold  such  crops  against  the  creditors  of 
the  lessee.    Smith  v.  Atkins,  18  Vt.  461.    Justice  Redfield,  in  deliver- 
ing the  opinion,  said:    "It  is,  without  doubt,  true  that  the  sale  of 
a  thing  not  in  exis-tence  is,  upon  general  principles,  inoperative, 
being  merely  executory;  that  is,  it  confers  no  title  in  the  thing 


238  Cases  on  Personal,  Property 

bargained.  But  when  the  thing  thereafter  to  be  produced  is  the 
produce  of  land,  or  other  thing,  the  OMTier  of  the  principal  thing 
may  retain  the  general  property  of  the  thing  produced,  unless 
there  be  fraud  in  the  contract,  and  it  be  entered  into  merely  to 
defeat  creditors."  In  Jones  v.  Yv'ebster,  48  Ala.  112,  it  is  said: 
* '  If  the  mortgagors  had  undertaken  to  convey  the  future  crops  they 
might  make,  without  possessing  any  land  upon  which  to  make 
them,  and  especially  without  the  contemplation  of  the  immediate 
acquisition  of  some,  then,  certainly,  their  conveyance  would  be 
without  operation.  In  this  case  they  had  the  land,  and  the  crops 
conveyed  were  to  be  grown  upon  it  during  their  po-ssessorj-  interests. 
The  crops  were  an  accretion  or  addition  to  the  land  which  might 
very  reasonably  be  expected  to  be  made.  They  were  therefore 
proper  subjects  of  mortgage."  In  McCaffrey  v.  "VVoodin,  65  N.  Y. 
464,  it  is  said:  "It  is  w^ell  settled  that  a  grant  of  the  future 
produce  of  land  actually  in  possession  of  the  grantor  at  the  time 
of  the  grant  passes  an  interest  in  such  future  crop  as  soon  as  it 
pornes  into  existence."  It  was  held  in  Andrew  v.  Newcomb,  32  N. 
Y.  417, — Chief  Justice  Denio  rendering  the  opinion, — that  crops 
to  be  raised  by  the  owner  of  the  land  are  an  exception  to  the  general 
rule  that  the  "title  to  property  not  in  existence  cannot  be  affected 
so  as  to  vest  the  title  when  it  comes  into  existence,"  and  that  "the 
owner  of  land  may  lawfully_contract  for  its  cultivation,  and  may 
provide  in  whom  the  ownersliip  of  the  product  shall  vest."  In 
Watkins  v.  Wyatt,  9  Baxt.  250,  Wyatt  agreed  to  furnish  one  McCain 
with  supplies  on  condition  that  McCain,  who  was  a  farmer,  should 
execute  to  him  a  mortgage  of  his  cotton  crop  for  the  then  current 
year  as  security  for  the  supplies  so  furnished  "to  enable  him 
(McCain)  to  make  said  crop."  The  crop  was  not  then  sown.  This 
case  cites  many  of  the  above  authorities,  and  others.  It  recognizes 
that  there  is  a  seeming  conflict  in  the  adjudged  cases  upon  the 
subject,  but  sustains  the  validity  of  the  mortgage.  It  is  there  said : 
"The  right  in  the  proprietor  of  the  soil  to  plant,  cultivate,  and 
gather  his  crops,  to  the  exclusion  of  all  others,  in  an  absolute  legal 
right,  and  an  incorporeal  property,  and  incorporeal  property  is  as 
well  the  subject  of  valid  sale  and  mortgage  as  any  other  kind  of 
property.  The  mortgagor,  in  this  case,  was  the  proprietor  of  the 
land  on  which  he  proposed  to  raise  the  crop  in  controversy.  The 
orop  had  a  potential  existence,  because  it  was  to  be  the  natural 
product  and  expected  increase  of  the  land  then  owned  and  occupied 
by  him."  The  like  contract  was  sustained  in  Butt  v.  Ellett,  19 
AVall.  544.    This  doctrine  is  also  sustained  by  the  following  authori- 


Limitations  on  and  Interests  in  Property  239 

ties:  Arques  v.  Wasson,  51  Cal.  620;  Conderman  v.  Smith,  41 
Barb.  404 ;  Van  Hoozer  v.  Coty,  34  Barb.  10 ;  Senter  v.  Mitchell, 
16  Fed.  Rep.  206.  In  Bobbins  v.  McKnight,  5  N.  J.  Eq.  642,  the 
contract  was  in  all  essential  features  identical  with  the  one  here 
involved,  and  it  was  sustained  by  the  court.  In  the  present  case 
the  trees  were  in  existence  at  the  time  of  the  contract,  were  trans- 
ferred to  and  became  the  property  of  Schultz,  the  vendee,  subject 
to  a  share  of  the  crops  for  the  years  specified;  the  contract  was 
executed  by  the  plaintiffs,  and  operated  to  the  great  benefit  of 
Schultz  and  his  grantee,  the  defendant.  This  contract  is  one  that 
the  law  ought  to  delight  in  sustaining.  If  it  cannot  be  sustained, 
then  no  executed  contract  can  be,  where  a  party  furnishes  seed, 
and  puts  in  the  crop  upon  shares.  The  same  reason  that  would 
defeat  the  right  to  recovery  for  the  crop  of  peaches  in  this  case 
would  defeat  the  right  to  recover  a  crop  of  corn,  wheat,  or  other 
grain,  or  strawberries  and  other  fruits  of  like  character.  The 
defendant  purchased  with  notice,  and  the  purchase  price  was 
reduced  on  account  of  the  plaintiffs'  rights  in  the  crop.  We  think 
that  under  the  authorities  above»  cited,  as  well  as  in  reason  and 
justice,  plaintiffs  and  Schultz  became  tenants  in  common  of  the 
peaches  for  the  j'ears  which  they  should  select,  and  that  defendant, 
having  purchased  with  notice,  stood  in  the  same  relation  to  plain- 
tiffs that  did  his  grantor.  Defendant's  counsel  site  Bates  v.  Smith, 
83  Mich.  347,  47  N.  W.  Rep.  249,  and  insist  that  it  controls  this 
case  in  their  favor.  The  language  of  that  case  is  broad,  and,  if 
strictly  followed,  would  seem  to  include  the  present  one ;  but  we 
think  the  authorities  above  cited  make  a  clear  distinction  between 
the  natural  products  of  the  soil,  wool  from  sheep,  milk  from  cows, 
and  the  like,  from  the  case  that  was  then  under  consideration, 
and  we  are  disposed  to  follow  them.  The  language  of  that  case 
must  be  construed  in  connection  with  its  facts.  Judgment  affirmed. 
The  other  justices  concurred. ^ 


ROCHESTER  DISTILLING  CO.  v.  RASET. 

112  N.  Y.  570,  37  X.  E.  632.    1894. 

[This  was  an  action  of  replevin  l)rought  by  the  Rochester  Distill- 
ing Company  against  the  defendant  Rasey  to  recover  possession 
2  See  Childs'  Personal  Property,   §110. 


240  Cases  on  Personal.  Property 

of  a  growing  crop  sold  to  the  defendant  under  a  chattel  mortgage. 
The  chattel  mortgage  covered  "the  grass  now  growing  apon  the 
premises  leased, ' '  etc, ;  '  *  also  all  the  corn,  potatoes,  oats,  and  beans 
which  are  now  sown  or  planted,  or  which  are  hereafter  sown  or 
planted  during  the  next  year."  At  the  time  the  chattel  mortgage 
was  given,  all  the  beans  and  the  greater  part  of  the  potatoes  were 
yet  to  be  planted.    Judgment  for  plaintiff  and  defendant  appealed.] 

Gray,  J. — I  think  this  case  does  not,  in  principle,  differ  from 
any  other  case  where  a  chattel  mortgage  has  been  given  upon 
property  in  expectancy,  and  which  has  no  potential  existence  at 
the  time  of  its  execution.  The  fact  that  the  subject  of  the  mort- 
gage is  a  crop  to  be  planted  and  raised  in  the  future  upon  land 
does  not  affect  the  determination  of  this  question  upon  established 
principles.  It  may  be  that  precisely  such  a  case,  in  its  facts,  has 
not  been  passed  upon  in  this  court;  but  there  are  expressions  of 
opinion  in  several  cases  of  a  kindred  nature  in  the  Reports  of 
this  court  and  of  other  courts  in  this  state  which  leave  us  in  no 
doubt  as  to  the  doctrine  which  should  govern.  The  proposition 
that  a  mortgage  upon  chattels  having  no  actual  or  potential  exist- 
ence can  operate  to  charge  them  with  a  lien  when  they  come 
into  eHstmc^e7^s"'¥gaihsr  an  a^^^^  or  an  executiBn  credfEor, 

has  frequently  been  discountenanced  and  repudiated.  Grantliam  v. 
Hawley,  Hoh.  132,  is  the  general  source  of  authority  for  the  propo- 
sition that  one  may  grant  what  he  has  only  potentially,  and  there 
is  no  good  reason  for  doubting  that  that  which  has  a  potential  or 
possible  existence,  like  the  spontaneous  product  of  the  earth  or  the 
increase  of  that  which  is  in  existence,  may  properly  be  the  subject 
of  sale  or  of  mortgage.  The  right  to  it  when  it  comes  into  exist- 
ence is  regarded  as  a  present  vested  right.  That  which  is,  how- 
ever, the  annual  product  of  labor  and  of  the  cultivation  of  the 
earth  cannot  be  said  to  have  either  an  actual  or  a  potential  exist- 
ence before  a  planting.  This  action  being  one  at  law,  the  inquiry 
is  limited  to  ascertaining  the  strictly  legal  rights  of  two  contend- 
ing creditors  to  the  property  of  their  debtor,  Powell,  in  the  crops 
which  he  had  raised.  It  is  unlike  some  of  the  cases  which  have 
arisen  between  the  lessor  of  land  and  his  lessee.  In  such  a  case, 
a  different  principle  might  operate  to  create  and  support  the  lien 
of  the  landlord  upon  the  crops  as  they  come  into  existence  upon 
the  land.  The  title  to  the  land  being  in  him,  an  agreement  between 
him  and  the  lessee  for  a  lien  upon  the  crops  to  be  raised  to  secure 
the  payment  of  the  rent  would  operate  and  be  given  legal  effect 


Limitations  on  and  Interests  in  Property  241 

as  a  reservation  at  the  time  of  the  title  to  the  product  of  the  land. 
That  was  the  case  of  Andrew  v.  Newcomb,  32  N.  Y.  417,  where  the 
owner  of  land  agreed  with  another  that  he  might  cultivate  it  at 
a  certain  rent,  the  crop  to  remain  the  property  of  the  landlord 
until  the  tenant  should  give  him  security  for  the  rent.  Judge 
Denio  repudiated  the  idea  that  the  arrangement  could  be  called 
a  conditional  sale  of  the  flax,  because  the  subject  was  not  in  existence. 
He  held  that  the  idea  of  a  pledge  or  of  a  sale  had  no  application, 
and  that  the  effect  of  the  contract  was  to  give  to  the  landlord  the 
original  title  to  the  crop.  His  remarks  upon  the  subsequent  vest- 
ing of  the  title  to  crops,  when  they  come  into  being,  have  reference 
to  such  an  arrangement  between  landlord  and  tennant,  and  not  to 
the  case  of  a  mortgage  or  conditional  sale  to  some  third  person  of 
crops  yet  to  be  planted.  Mr.  Thomas,  in  his  work  on  Chattel  Mort- 
gages, upon  the  subject  of  mortgaging  a  crop  not  yet  planted,  says 
(section  149)  :  "The  weight  of  authority  inclines  to  the  view 
that  the  lien  is  an  equitable  one,  and  differs  in  some  respects  from 
the  charge  created  by  a  mortgage  of  property  in  existence  at  the 
date  of  the  agreement."  And,  again,  he  says:  ''The  authorities 
are  mainly  to  the  effect  that  such_a  mortgage  conveys  no  title  or 
interest  as  against  attaching  or  Judgment  creditors  of  the 
mortgagor./ '    About  this  question  of  mortgaging  personal  property 


to  be  subsequently  acquired  much  has  been  written  in  the  books 
which  I  deem  unnecessary  to  resume  here  at  any  great  length. 
It  results  from  a  review  of  the  authorities  \  that  _a  mort- 
gage  cannot  be  given  future  effect  as  a  lien  upon  personal 
jiropertv  which,  at  the  time  ofTts  delivery,  was  not  in  existence, 
actually  or  potentially,  when  the  rights  o£~creditors  have  inter- 
vened. At  law  such  a  mortgage  must  be  conceded  to  be  void.  The 
mortgage  could  have  no  positive  operation  to  transfer  in  praesenti 
property  not  in  esse.  At  furthest,  it  might  operate  by  way  of  a 
present  contract  between  the  parties  that  the  creditor  should  have 
a  lien  upon  the  property  to  be  subsequently  acquired  by  his  debtor 
which  equity  would  enforce  as  against  the  latter. 

In  Bank  v.  Crary,  1  Barb.  542,  Paige,  J.,  observed :  ' 'I  strongly 
incline  to  the  opinion  that  a  chattel  mortgage  can  only  operate  on 
property  in  actual  existence  at  the  time  of  its  execution;  that  it 
cannot  be  given  on  the  future  products  of  real  estatcr;  and  that, 
TFgiven  one  day  or  one  week  before  the  product  of  the  land  comes 
into  existence,  it  is  as  inoperative  as  if  the  chattel  mortagage  had 
been  given  on  a  crop  of  grass  or  grain  one,  two,  or  three  years  pre- 
vious to  its  production."  In  a  subsequent  case,  the  same  learned 
C.P.P.— Ifi 


242  Cases  on  Personal  Property 

judge  considered  the  nature  of  a  mortgage  relating  to  property  not 
then  in  existence,  and  its  effect  as  to  creditors  of  the  mortgagor. 
In  Otis  V.  Sill,  8  Barb.  102,  the  plaintiff  claimed  under  a  chattel 
mortgage,  M'hich,  after  describing  the  property  mortgaged,  contained 
the  following  clause:  "All  scythes  manufactured  out  of  the 
said  iron  and  steel,  and  all  scythes,  iron,  steel,  and  coal  which 
may  be  purchased  in  lieu  of  the  property  aforesaid."  Subse- 
quently, the  property  was  taken  under  execution  issued  on  judg- 
ments, and  the  action  was  brought  for  its  taking  and  detention. 
Paige,  J.,  refers  to  his  opinion  in  Bank  v,  Crary,  that  a  chattel 
mortgage  could  only  operate  on  property  in  actual  existence  at  the 
time  of  its  execution.  He  elaborately  discusses  the  question  of 
whether  such  a  mortgage  was  a  lien  upon  the  property  when  ac- 
quired, as  against  the  creditors  of  the  mortgagor,  and  reviews  very 
many  authorities  in  England  and  some  in  this  country.  His  con- 
clusions were  adverse  to  the  proposition.  He  held  that,  as  to  sub- 
sequently acquired  property,  the  mortgage  could  only  be  regarded 
as  a  mere  contract  to  give  a  further  mortgage  upon  such  property, 
and  that  no  specific  lien  was  created  thereby.  He  says :  "I  have 
come  to  the  conclusion,  as  the  result  of  all  the  authorities,  that  if 
the  mortgage  in  this  case  did  amount  to  a  contract  to  execute  a 
further  mortgage  on  subsequently  acquired  property,  it  was  good 
as  an  executory  contract  only,  and  did  not  constitute  a  lien  on  the 
articles  of  the  kind  mentioned  therein  when  subsequently  pur- 
chased." In  Gardner  v.  McEwen,  19  N.  Y.  123,  the  chattel  mort- 
gage  to  the  plaintiff  upon  property  in  the  store,  "or  which  might 
thereafter  be  purchased  and  put  into  store,"  was  held  inoperative 
to  convey  the  title  to  the  after-acquired  property,  as  against  the 
defendant,  who  purchased  it  at  a  sale  under  execution  upon  a  judg- 
ment against  the  mortgagor.  McCaffrey  v,  AVoodin,  65  N.  Y.  459, 
was  an  action  in  trover.  Plaintiff  was  lessee  and  defendant  was 
agent  for  the  lessor.  The  former  covenanted  in  the  lease  that  the 
latter  should  have  "a  lien,  as  security  for  the  payment  of  the  rent," 
on  all  the  personal  property,  etc.,  which  should  be  put  upon  the 
premises,  ' '  and  such  lien  to  be  enforced,  on  the  nonpayment  of  the 
rent,  by  the  taking  and  the  sale  of  such  property  in  the  same  man- 
ner as  in  cases  of  chattel  mortgages  on  default  thereof."  By  vir- 
tue of  this  provision  in  the  lease,  the  defendant  took  the  farm  pro- 
duce. The  decision  upheld  the  rights  of  the  landlord  to  do  so,  hold- 
ing that  as  the  crops  eame  into  existence  they  vested  in  the  land- 
lord. It  is  to  be  noted  that  the  court  considered  the  case  as  one 
to  be  governed  by  equitable  principles,  observing  that  "the  matter 


Limitations  ox  and  Interests  in  Property  243 

comes  up  solelv  hetwpen   tlip  pnrtips,  there  being  no  iiiterveuing 
rights  of  creditors."    Referring  to  Gardner  v.  McEwen,  supra,  it 
was  remarked  that  that  "is  a  case  between  the  mortgagee  and 
creditors,  and  was  aifected  by  our  act  concerning  filing  chattel  mort- 
gages."   Treating  the  question  as  one  for  the  application  of  equit- 
able principles,  it  was  held  that  the  lessor  was  entitled  to  set  up 
her  equitable  rights  as  a  defense  to  the  plaintiff's  (the  lessee's) 
action  of  trover.     *     *     *     in   Cressey  v.   Sabre,   17   Hun.   120, 
where  the  opinion  was  delivered  b}'  Boardman,  J.,  and  was  con- 
curred in  by  Learned  and  Bockes,  JJ.,  a  chattel  mortgage  upon 
potatoes   (among  other  articles  of  property)   which  were  not  yet 
planted,  was  held  inoperative.     The  distinction  was  there  men- 
tioned between  a  case  like  McCaffrey  v.  Woodin,  where  the  ques- 
tion of  title  was  between  the  parties  to  the  contract  and  one  where 
it  arose  between  the  mortgagee  and  a  third  person.     In  Coats  v. 
Donnell,  94  N.  Y.  168,  Andrew.s,  J.,  observed  that  ''a  contract  for 
a  lien  on  property  not  in  esse  may  be  effectual  in  equity  to  give  a 
lien  as  between  the  parties,  when  the  property  comes  into  existence 
and  where  there  are  no  intervening  rights  of  creditors  or  third  per- 
sons."   Kribbs  V.  Alford,  120  N.  Y.  519,  24  N.  E.  811,  recognizes 
the  invalidity  at  law  of  a  chattel  mortgage  of  property  thereafter 
to  be  acquired ;  but  holds  that,  as  between  the  parties,  their  con- 
tract would  be  construed  in  equity  as  creating  an  equitable  lien, 
which  could  be  enforced.    The  idea  of  a  chattel  mortgage  is  that  of 
a  conveyance  of  personal  property  to  secure  the  debt  of  the  mort- 
gagor, which,  being  conditional  at  the  time,  becomes  absolute  if,  at 
a  fixed  time,  the  property  is  not  redeemed ;  and  the  statute  makes 
it  valid  as  against  creditors  of  the  mortgagor  only  when  filed  as 
directed.    The  statute  provides  for  the  filing  as  a  substitute  for  *'an 
immediate  delivery,"  or  ''an  actual  and  continued  change  of  pos- 
session of  the  things  mortgaged."     Such  provisions  seem  to  me  to 
exclude  the  idea  of  a  chattel  mortgage  upon  nonexistent  things, 
or  that  such  an  instrument  could  operate  to  defeat  the  lien  of  an 
attaching  or   an   execution   creditor  upon   subsequently  acquired 
property.    Regarding  the  chattel  mortgage  in  question  as  a  mere 
executory  agreement  to  give  a  lien  when  the  property  came  into 
existence,  some  further  act  was  necessary  in  order  to  make  it  an 
actual  and  effectual  lien  as  against  creditors.     But  there  was  no 
further  act  by  the  parties  to  the  instrument  to  create  such  an  actual 
lien,  and  the  levy  of  the  execution  upon  the  crops  operated  to  trans- 
fer their  possession   from  the  owner  to  that  of  the  sheriff.     As 
against  his  possession,  the  equities  of  the  mortgagee  are  unavailing 


244  Cases  on  Personal  Property 

for  any  purpose.  *  *  *  We  are  satisfied  as  to  the  correctness 
of  the  conclusion  reached  by  the  general  term  below  that  there 
should  have  been  a  direction  of  a  verdict  for  the  plaintiff  for  the 
potatoes  and  beans  obtained  from  the  planting  done  after  the  exe- 
cution and  delivery  of  the  mortgage.  The  order  appealed  from 
should  be  affirmed,  and,  under  the  stipulation,  judgment  absolute 
should  be  ordered  for  the  plaintiff,  with  costs  in  all  the  courts.  All 
concur,  except  Earl,  J.,  not  voting.    Ordered  accordingly.^ 


KELLOGG  V.  LOVELY. 

46  Mich.  131,  8  N.  W.  699,  41  Am.  Rep.  155.     1881. 
The  facts  are  stated  in  the  opinion. 

Graves,  J. — The  circumstances  of  this  controversy  are  as  follows. 
In  October,  1878,  the  defendant  sold  the  plaintiff  on  credit  a  mare, 
buggy  and  harness  for  the  agreed  price  of  $250  and  the  plaintiff 
gave  his  note  together  with  a  mortgage  on  the  property  for  the 
entire  sum. 

The  mare  was  with  foal  and  about  the  first  of  June  following 
she  dropped  the  colt.  On  the  first  of  July  the  mortgage  became 
due,  and  Kellogg  failing  to  pay.  Lovely  proceeded  to  take  the  prop- 
erty. There  was  no  dispute  about  his  right  to  take  the  mare,  buggy 
and  harness,  but  the  parties  appear  to  have  differed  about  the  colt. 
Lovely  maintained  that  the  mortgage  applied  to  it  and  gave  him 
the  same  right  to  the  colt  that  it  did  to  the  mare,  but  Kellogg  con- 
tested this  claim  and  contended  that  the  colt  being  the  offspring  of 
the  mare  was  his  property  and  not  having  been  bom  when  the 
mare  was  purchased  and  the  mortgage  given  was  not  subject  to 
the  mortgage. 

The  colt  had  not  been  weaned  and  was  running  with  the  mare 
and  when  Lovely  drove  her  off  the  colt  followed.  Lovely  soon  after- 
wards proceeded  to  sell  the  whole  property,  the  colt  included,  under 
the  mortgage,  and  we  gather  from  the  case  that  it  was  bought  in 
for  him  through  an  agent.  The  whole  sum  for  which  the  property 
was  struck  off  was  $176,  and  shortly  afterwards  Kellogg  paid  the 
remainder  of  the  debt.  He  then  instituted  replevin  against  Lovely 
before  a  justice  of  the  peace  to   obtain  the  colt  and  it  was  seized  on 

3  See  Childs '  Personal  Property,  §  110. 


Limitations  on  and  Interests  in  Property  245 

the  writ  and  delivered  into  his  possession.  The  justice  entered  a 
nonsuit  against  him,  and  Lovely,  waiving-  return  of  the  colt,  the 
value  was  assessed  at  $55,  for  which  Lovely  took  judgment.  An 
appeal  was  made  and  the  circuit  court  reduced  the  assessment  to 
$30  and  awarded  Kellogg  $78  costs  and  extinguished  the  former  by 
applying  an  equal  amount  of  the  latter  by  way  of  set  off.  There- 
upon Kellogg  sold  the  colt  and  brought  tliis  action  of  trespass,  count- 
ing on  the  transaction  when  Lovely  took  the  mare  on  the  mortgage. 
The  justice  gave  judgment  in  Kellogg 's  favor  for  the  value  of 
the  colt  and  Lovely  appealed.  The  circuit  judge  ruled  that  there 
was  no  evidence  of  trespass  and  ordered  a  verdict  for  Lovely.  It 
is  not  certain  that  the  circuit  judge  was  correct  in  the  reason  on 
which  he  proceeded.  But  whether  he  was  or  not  is  unimportant 
unless  the  result  was  wrong. 

The  fundamental  question  in  the  case  relates  to  the  effect  on  the 
legal  ownership  of  the  colt,  of  the  sale  of  the  mare  to  Kellogg 
and  the  mortgage  back.  In  respect  to  tame  and  domestic  animals 
the  general  rule  is  well  understood,  that  "the  brood  belongs  to 
the  owner  of  the  dam  or  mother,"  (2  Bl.  Com.  390),  but  there  are 
many  cases  in  which  the  rule  is  qualified  in  its  application.  It 
has  been  held  and  may  be  true  in  special  cases  that  where  the 
female  is  hired  for  a  time  limited  and  has  increase  during  the 
term,  the  hirer  will  be  entitled  to  it  and  not  the  general  owner.  2 
Kent  361;  Edwards  on  B.  §  402;  Putnam  v.  AVyley,  8  Johns,  432; 
Concklin  v.  Havens,  12  Johns.  314;  Hanson  v.  Millett,  55  N.  H. 
184 ;  Stewart  v.  Ball,  33  Miss.  154.  And  so  too  it  was  decided  in 
Linnendoll  v.  Terhune,  that  a  foal,  obtained  under  an  agreement 
by  which  the  owner  of  the  mare  arranged  with  another  person 
that  if  he  would  put  her  to  horse  and  pay  the  expense  he  should 
have  the  foal,  became  the  property  of  such  person.    14  Johns.  222. 

It  is  also  laid  down  by  Judge  Story  that  where  a  thing  is  pledged 
its  natural  increase  as  accessory  is  also  pledged,  and  he  gives  by 
way  of  illustration  the  case  where  a  flock  of  sheep  are  pledged, 
and  observes  that  the  young  afterwards  born,  are  also  pledged. 
Bailment,  §  292;  and  see  Domat,  part  1,  book  3,  tit.  1,  §  1,  art.  7; 
Kauf.  Mackeldey,  book  1,  §  267.  In  Iowa  and  Kentucky,  and  prob- 
ably in  other  states,  it  has  been  decided  that  the  young  of  animals 
under  mortgage  are  subject  to  the  mortgage,  (FSorman  v.  Proctor, 
9  B.  Mon.  124;  Thorpe  v.  Cowles,  7  N.  W.  Rep.  677,  3  Iowa  649)  ; 
and  no  cases  to  the  contrary  have  been  discovered.  Perhaps  these 
last  decisions  may  have  originated  in  the  doctrine  that  the  mort- 
gagee of  chattels  is  the  legal  owner ;  and  the  courts  may  have  con- 


246  Cases  on  Personal.  Property 

sidered  that  in  holding  the  young  of  mortgaged  animals  to  be  sub- 
ject to  the  mortgage,  they  were  only  applying  the  general  rule 
vrhich  assigns  the  increase  to  the  owner  of  the  mother.  But  it  is 
useless  to  speculate  on  the  subject. 

The  case  before  the  court  belongs  to  a  peculiar  and  exceptional 
class,  and  it  may  be  disposed  of  without  bringing  into  the  question 
the  general  doctrine.  As  previously  stated,  the  mare  was  carrying 
her  colt  when  Lovely  sold  her,  and  the  plaintiff,  not  paying  any- 
thing whatever,  gave  back  at  the  same  moment  a  chattel  mortgage 
for  the  entire  price.  There  was  no  inter\'^al  of  time  Jjetween  the 
sale  and  mortgage.  Each  took  effect  at  the  same  instant.  The 
whole  was  substantially  one  transaction.  Now  it  is  a  rule  of  natural 
justice  that  one  who  has  gotten  the  property  of  another  ought  not 
as  between  them  to  be  allowed  to  keep  any  part  of  its  present 
natural  incidents  or  accessories  without  payment,  and  that  the 
party  entitled  should  have  the  right  to  regard  the  whole  as  being 
subject  to  his  claim.  The  one  ought  not  to  suffer  loss,  nor  the  other 
effect  a  gain,  through  a  mere  shuffle,  and  whatever  fairly  belongs 
to  the  thing  in  question,  as  the  young  the  dam  is  carrying  belongs 
to  her,  ought  to  be  as  fully  bound  as  the  thing  itself,  unless  indeed 
there  are  circumstances  which  imply  a  different  intention. 

It  is  not  unreasonable  to  construe  the  act  of  these  parties  by 
these  principles  and  to  consider  that  when  Lovely  sold  the  mare 
without  receiving  anything  down  and  Kellogg  gave  back  the  mort- 
gage for  the  whole  purchase  price  to  be  due  before  the  colt,  accord- 
ing to  the  ordinary  course  of  things  would  be  old  enough  to  be  sepa- 
rated from  the  mare,  it  operated  as  well  to  hold  the  colt  as  to  hold 
the  mare  lierself.  The  intendment  is  a  fair  and  just  one  that  the 
security  was  to  be  so  far  beneficial  to  Lovely  as  to  preserve  to  him 
the  right  to  claim  at  the  maturity  of  the  mortgage  the  same  property 
he  would  have  had  in  ease  he  had  made  no  sale.  According  to  this 
view  there  was  the  same  right  to  the  colt  as  to  the  mare,  and  the  act 
of  seizure  sued  for  was  not  a  trespass.  The  result  ordered  by  the 
circuit  judge  was  therefore  correct  and  the  judgment  must  be 
affirmed  with  costs. 

(The  other  justices  concurred.)^ 

4  See  Childs'  Personal  Property,  §§  110,  142. 


Limitations  on  and  Interests  in  Property  247 

DEMERS  V.  GRAHAM  et  al.  V 

36  Mont.  402,  93  Pac.  268,  1-i  L.  R.  A.  (N.  S.)  431.    1907. 
The  facts  are  stated  in  the  opinion. 

Smith,  J. — The  only  question  for  determination  in  this  ease 
is  whether  a  chattel  mortgage  of  certain  cows  covers  their  calves 
in  gestation  at  the  time  the  mortgage  was  executed,  but  born  prior 
to  foreclosure;  there  being  no  reference  in  the  mortgage  to  the 
increase  of  the  cows.  The  defendant,  Graham,  holds  in  his  posses- 
sion, as  sheriff  of  Missoula  county,  the  sum  of  $609,  the  proceeds 
of  the  sale  of  87  calves,  sold  by  him  under  a  stipulation  that  he 
should  hold  the  proceeds  until  the  final  determination  of  this  action. 
The  plaintiff  claims  the  money  by  virtue  of  the  fact  that  he  held 
a  chattel  mortgage  on  the  mothers  of  the  calves  at  the  time  the 
young  were  born.  The  appellant,  Prideaus,  claims  to  be  entitled  to 
the  sum  by  virtue  of  a  sale  of  the  calves  to  him  by  Sloan,  the 
mortgagor,  after  the  sheriff  had  seized  but  before  he  sold  the  same 
under  plaintiff's  mortgage.  Prideaux  set  forth  in  his  answer  the 
respective  claims  of  the  parties,  as  above  recited.  The  district 
court  of  Missoula  county  sustained  a  general  demurrer  to  the 
answer,  and,  in  default  of  further  pleading  by  Prideaux,  entered 
a  judgment  in  favor  of  the  plaintiff  and  against  the  defendant 
Graham,  as  sheriff,  for  the  sum  of  money  in  dispute.  From  that 
judgment  Prideaux  has  appealed. 

The  law  is  well  settled  in  this  state  that  a  chattel  mortgage  only 
creates  a  lien  and  does  not  pass  title  from  the  mortgagor  to  the 
mortgagee.  Bennett  Bros.  Co.  v.  Tam,  24  Mont.  457-467,  62  Pac. 
780;  Mueller  v.  Renkes,  31  Mont.  100,  77  Pac.  512.  Such  lien 
transfers  no  title.  Civ.  Code  §  3750.  The  question  of  the  extent 
of  the  lien  created,  in  those  jurisdictions  where  no  title  passes, 
has  been  a  fruitful  source  of  litigation  for  many  years.  The 
immediate  question  that  we  are  to  decide  has  never  been  before 
this  court,  and  we  feel  therefore  that  in  the  determination  of  the 
same  we  should  point  out  what  seem  to  us  to  be  the  principles 
involved,  and  not  merely  cite  the  precedents  of  the  courts.  The 
Supreme  Court  of  California,  in  the  case  of  Sboobert  v.  De  Motta, 
112  Ca.l.  215,  44  Pac.  487,  53  Am.  St.  Rep.  207,  took  occasion  to 
examine  and  differentiate  the  decisions  on  this  subject  in  the  fol- 
lowing language:  "Tt  bas  been  held  in  some  states  that  the  lion 
of  a  mortgage  of  domestic  animals  extends  to  the  increase  of  the 


248  Cases  on  Personal  Property 

auimals^^urJDg  tha-Jiffi  of  t}i£_inortgage.  whether  the  terms  c^ 
the  mortgage  include  such  increase  or  not,  and,  following  these 
decisions,  such  a  rule  is  stated  in  text-books  upon  chattel  mort- 


gages~Tt  will  be  found,  however,  upon  examination  of  these  eases, 
that  the  decisions  therein  are  based  upon  the  principle  of  the 
common  law,  which  was  in  force  in  those  states,  that  by  the  mort- 
gage the  mortgagee  is  vested  with  the  title  to  the  mortgaged 
property,  and  becomes  the  owner  thereof;  and  that  in  the  case  of 
domestic  animals,  applying  another  rule  of  both  the  common  and 
the  civil  law,  that  'the  brood  belongs  tO'  the  owner  of  the  dam  or 
mother,  partus  sequitur  ventrem'  (2  Blaekstone's  Commentaries, 
890),  he  thereby  becomes  the  owner  of  such  increase,  and,  being 
the  owner,  his  title  in  any  action  at  law  must  prevail.  The  earliest 
application  of  this  rule  was  in  the  case  of  a  mortgage  of  a  female 
slave  (Hughes  v.  Graves,  1  Litt.  317),  which  was  decided  in  Ken- 
tucky in  1822,  and  was  afterward  followed  in  Maryland  in  1836. 
in  the  case  of  Evans  v.  Merriken,  8  Gill,  &  J.  39,  which  also  involved 
the  offspring  of  a  female  slave  which  had  been  mortgaged;  and 
these  cases  are  cited  as  the  authority  upon  which  cases  involving 
the  same  question  have  been  decided  in  other  states,  in  some 
instances  referring  also  to  the  principle  upon  which  the  rule  rests, 
and  in  others  merely  referring  to  the  cases  as  an  authority  (Cahoon 
V.  Miers,  67  Md.  573,  11  Atl.  278 ;  Gundy  v.  Biteler,  6  111.  App. 
510;  Ellis  V.  Reaves,  94  Tenn.  210,  28  S.  W.  1089).  The  rule  has 
also  been  stated  in  many  other  cases  in  which  the  question  was 
neither  involved  nor  decided  (Kellog  v.  Lovely,  46  Mich.  131,  8 
N.  W.  699,  41  Am.  Rep.  151;  McCarty  v.  Blevins,  5  Yerg.  (Tenn.) 
195,  26  Am.  Dec.  262;  Gans  v.  Williams,  62  Ala.  41)  ;  and  therejs 
still  another  line  of  decisions  in  which  it  has  been  sought  to  uphold 
the  propriety  of  the  rule  by  holding  that  the  increase  which  was 
in  gestation  at  the  execution  of  the  mortgage  was  inferentially 
"included  therein^  a  part  of  the  mortgaged  property.  (Funk  v. 
Paul,  64  Wis.  35,  24  N.  W.  419,  54' Am.  Rep.  5f6;  Rogers  v. 
Hyland,  69  Iowa,  504,  29  N.  W.  429,  58  Am.  Rep.  230;  Edmon- 
ston  V.  Wilson,  49  Mo.  App.  491).  A.nother  line  of  decisions  limits 
this  application  of  the  rule  by  holding  that  the  incfease~is~su'b^'" 
ject  to  the  lien  of  the  mortgage  only  for  so  long  a  time  as  the 
young  are  in  a  state  of  nurture  from  the  mother.  Rogers  v.  G^^ge, 
Sn/To:  App.  107 ;  Darling  v.  Wilson,  60  N.  H.  59,  49  Am.  Rep. 
305;  Forman  v.  Proctor,  9  B.  Mon.  (Ky.)  124.  The  want  of 
logical  sequence  in  this  limitation  has  been  felt  by  the  courts,  and 
some  of  them  have  sought  to  place  their  decision  upon  the  fact 


Limitations  on  and  Interests  in  Property  249 

that,  while  the  young  were  following  the  mother,  a  purchaser 
from  the  mortgagor  had  notice  by  that  fact  that  it  was  her  off- 
spring, and  subject  to  the  mortgage,  and  was  thus  prevented  from 
claiming  to  be  a  purchaser  in  good  faith.  Placing  the  decision 
on  this  ground  is,  however,  necessarily,  a  repudiation  of  the  prin- 
ciple upon  which  all  the  above  cases  rest,  for,  if  the  mortgagee 
is  in  fact  the  owner  of  the  increase,  the  question  of  good  faith  in 
a  purchase  from  the  mortgagor  is  immaterial.  Prior  to  1873  the 
giving  of  a  chattel  mortgage  in  this  state  vested  the  mortgagee 
with  the  title  to  the  property  mortgaged  (Ileyland  v.  Badger,  35 
Cal.  404),  and,  while  this  rule  o?  law  prevailed,  the  foregoing 
decisions  would  have  been  applicable.  The  Civil  Code,  however, 
went  into  effect  at  the  beginning  of  that  year,  and  under  its  pro- 
visions the  mortgagor  is  not,  by_the  execution  of  the  chattel  jnort- 
gage,  divested  of  his  title  to  the  property,  but  still  remains  its 
owner,  while  the  mortgagee  has_only  alien  thereon._  Civ.  Code, 
§2888;  Bank  of  Ukiah  v.  Moore,  106  Cal.  673,  39  Pac.  1071. 
Consequently  the  foregoing  decisions  cannot  be  regarded  as  hav- 
ing authoritative  force,  but  the  rights  of  the  parties  must  be 
determined  upon  the  general  principles  controlling  the  relations 
between  a  mortgagor  and  mortgagee.  In  the  absence  of  any 
express  agreement  upon  the  subject,  the  lien  created  by  a  mort- 
gage is  limited  to  the  property  which  is  described  in  the  mortgage, 
and  does  not  include  other  property  of  the  same  character  which 
the  mortgagor  may  have  afterward  acquired  and  placed  with  the 
mortgaged  property.  Jones  on  Chattel  ]\Iortgages,  §§  138,  154. 
If  the  mortgagor  retains  the  possession  of  the  mortgaged  property, 
he  is  at  liberty  to  deal  wdth  and  use  it  as  its  ownerTlmd  what- 
ever  income  or  profit  may  be  derived  from  such  use  belongs  to 
Him,  and  not  to  the  mortgagee.  See  Simpson  v.  Ferguson,  112 
Cal.  180,  40  Pac.  104,  44  Pac.  484,  35  Am.  St.  Rep.  201.  If,  in 
the  case  of  sheep,  the  use  to  which  he  puts  the  ewes  is  for  breed- 
ing lambs,  there  can  be  no  sufficient  reason  given  why  the  lambs 
that  are  dropped  by  the  ewes  should  belong  to  the  mortgagee, 
any  more  than  the  wool  which  is  sheared  from  their  backs.  We 
are  aware  that  the  Supreme  Court  of  Texas,  in  First  Nat.  Bank  v. 
Western  Mortgage,  etc.,  Co.,  86  Tex.,  636,  26  S.  W.  488,  held  that, 
although  by  the  laws  of  that  state  the  mortgagor  of  personal  prop- 
erty remains  the  owner  thereof  after  the  execution  of  the  mortgage, 
the  foregoing  decisions  control  the  right  of  the  mortgagee 
to  the  increase  of  domestic  animals;  but  the  opinion  in  which  the 
decision  is  given  merely  states  the  proposition  without  presenting 


250  Cases  on  Personal,  Property 

any  reasoning  in  its  support,  and  does  not  meet  with  our  approval. 
We  are  not  called  upon  to  determine  in  the  present  case  whether, 
if  the  lambs  in  question  had  been  in  gestation  at  the  date  of  the 
mortgage,  they  would  have  been  included  as  a  part  of  the  prop- 
erty mortgaged,  but  we  hold  that,  inasmuch  as  they  were  begotten 
upon  the  ewes  after  the  mortgage  was  executed,  the  mortgagee 
has  no  lien  upon  them,  or  right  to  their  possession."  This  case 
was  supplemented  by  the  later  case  of  First  Nat.  Bank  v.  Erreca, 
116  Cal.  81,  47  Pac.  926,  58  Am.  St.  Rep.  133,  wherein  the  facts 
relative  to  the  time  at  which  the  offspring  were  begotten  are  like 
those  in  the  case  at  bar.  lA  that  case  the  court  said:  "The 
present  case  presents  a  question  which  was  not  involved  or  decided 
in  that  case,  i.  e.,  whether  the  lien  of  the  mortgage  includes  lambs 
in  gestation  at  its  date,  but  upon  the  principles  of  that  case  it 
must  be  held  that  they  are  not  so  included.  As  the  lien  of  the 
mortgage  extends  only  to  the  property  described  therein,  and  as 
the  mortgagor  remains  the  owner  of  the  property  mortgaged,  he 
has  an  unrestricted  right  to  sell  or  dispose  of  its  fruit  or  increase. 
His  right  to  dispose  of  lambs  in  gestation  or  wool  upon  the  backs 
of  the  sheep  at  the  date  of  the  mortgage  is  the  same  as  would  be 
his  right  to  dispose  of  oranges  which  were  on  the  trees,  or  wheat 
which  was  in  the  ground  or  standing  in  the  field  when  a  mort- 
gage of  the  land  was  made."  We  think  these  cases  correctly  state 
the  rule  of  law,  and  we  adopt  the  conclusions  reached  together 
with  the  reasons  assigned  therefor. 

Section  3893  of  the  Civil  Code  reads  as  follows:  "The  increase 
of  property  pledged  is  pledged  with  the  property."  Counsel  for 
appellant  contends  that  this  legislative  language  ought  to  be  inter- 
preted as  showing  an  intention  to  lay  down,  a  different  rule  as  to 
pledges,  from  that  pertaining  to  chattel  mortgages.  We  are 
inclined  to  think  there  is  merit  in  the  suggestion. 

On  the  part  of  the  respondent  our  attention  has  been  directed 
to  section  3815  of  the  Civil  Code,  reading  as  follows:  "A  mort- 
gage is  a  lien  upon  ever>i;hing  that  would  pass  by  a  grant  of  the 
property."  It  is  contended  that  the  foregoing  language,  applied 
to  this  case,  means  that  the  lien  of  the  mortgage  attached  to  the 
calves  in  question.  This  section  is  found  in  the  Code  under  the 
following  article  heading:  "Mortgages  in  General."  It  applies, 
therefore,  to  both  real  estate  and  chattel  mortgages.  There  is 
this  analogy  between  real  estate  and  chattel  mortgages,  that  both 
are  simply  liens.  Hull  v.  Diehl,  21  Mont.  71,  52  Pac.  782.  A 
mortgage  does  not  entitle  the  mortgagee  to  the  possession  of  the 


Limitations  on  and  Interests  in  Property  251 

property,  unless  authorized  by  the  express  terms  of  the  mortgage. 
Civ.  Code,  §  3816.  While  in  possession  of  mortgaged  real  prop- 
erty the  mortgagor  may  collect  and  appropriate  to  his  own  use 
the  rents  and  profits  thereof.  20  Am.  &  Eng.  Ency.  Law  (2d  Ed.) 
p.  979,  and  cases  cited.  Growing  crops  may  be  the  subject  of 
chattel  mortgage,  even  though  the  owner  of  the  same  also  owns 
the  land  upon  which  they  are  growing.  And  this  rule  prevails 
even  in  those  jurisdictions  where  growing  crops  are  part  of  the 
realty.  8  Am.  &  Eng.  Ency.  Law  (2d  Ed.)  311 ;  Civ.  Code,  §  3876. 
Now  it  will  not  be  contended  that  a  grant  of  the  land  would  not 
pass  title  to  a  gro\\nng  crop.  So,  too,  the  sale  of  a  cow  would 
undoubtedly  carry  with  it  her  unborn  calf;  but  we  cannot  assent 
to  the  conclusion  that  because  thereof,  a  chattel  mortgage  describ- 
ing the  cow  only  would  also  create  a  lien  upon  her  offspring. 

The  statute  referred  to  by  the  learned  counsel  is  comprehensive, 
and  the  construction  to  be  placed  upon  it  should  be  reached  only 
after  full  con.sideration  in  any  particular  case  in  which  it  may 
be  invoked.  We  do  not  think  it  wise  or  necessary  in  this  case  to 
construe  it  further  than  to  hold  that  it  does  not  apply  to  the 
natural  increase  of  domestic  animals  by  procreation.  We  think, 
if  the  Legislature  had  intended  that  the  lien  of  a  chattel  mort- 
gage describing  particular  animals  should  attach  to  their  young 
thereafter  to  be  bom,  it  would  have  said  so  plainly,  as  it  did  in 
the  case  of  a  pledge.  In  the  absence  of  such  a  declaration  it  seems 
reasonable  to  hold  that  because  the  mortgage  is  simply  a  lien  pass- 
ing  no  title  the  mortgagor  in  possession  has  the  right  to  deal  with 
The  property  as  Ins  own,  and  in  the  case  of  domestic ^imals  may 
clispose  of  the  young  not  mentioned  iirt"he~mortgage  as  he  sees 
fit.  This  construction  leaves  to  the  mortgagee  the  security  described 
Tn  the  mortgage,  and  does  away  with  the  confusion  that  experience 
has  taught  invariably  follows  the  adoption  of  any  other  rule.  If, 
in  eases  like  this,  it  be  intended  to  include  the  offspring,  the 
mortgage  should  so  state. 

The  judgment  of  the  district  court  of  Missoula  county  is  reversed, 
and  the  cause  is  remanded,  wath  instructions  to  vacate  the  order 
sustaining  the  demurrer  to  the  appellant's  answer,  and  to  enter 
an  order  overruling  the  same. 

Reversed  and  remanded. 

Brantly,  C.  J.,  and  Holloway,  J.,  concur.'* 

6  See  Childs'  Personal  Property,  §  110. 


252  Cases  on  Personal  Property 

HOLT  V.  LUCAS  et  al. 
77  Kan.  710,  96  Pac.  30,  17  L.  R.  A.  (N.  8.)  203.    1908. 
The  facts  are  stated  in  the  opinion. 

Porter,  J. — Plaintiff  brought  an  action  in  replevin  to  recover 
10  hogs  valued  at  $150  and  11  calves  valued  at  $55.  His  right  to 
the  possession  of  the  property  rests  upon  a  ehattle  mortgage,  given 
by  Louis  H.  Wiggin,  dated  April  5,  1904.  The  defendant  F.  P. 
Dickson  claims  the  property  by  virtue  of  an  attachment,  levied 
thereon  by  the  sheriff  of  Shawniee  county  subsequent  to  the  date 
of  plaintiff's  mortgage.  The  controversy  is  over  the  increase  of 
the  stock  described  in  the  mortgage.  The  mortgage  includes  7 
brood  sows,  9  cows  and  heifers,  and  all  the  increase  thereof.  The 
defendants  claim  that  plaintiff  allowed  the  calves  and  pigs  in 
controversy  to  remain  in  the  possession  of  the  mortgagor  after  the 
expiration  of  the  natural  weaning  period,  and  after  they  had  ceased 
to  follow  their  mothers,  and  that  for  this  reason,  as  against  an 
attaching  creditor,  the  increase  was  no  longer  subject  to  the  mort- 
gage lien.  The  jury  found  for  defendants,  and  found  the  value 
of  the  property  to  be  $180.  They  answered  special  questions, 
finding  that  the  note  secured  by  the  mortgage  was  due  and  unpaid ; 
that  the  property  in  controversy  is  the  increase  of  the  stock  men- 
tioned in  the  mortgage;  that  the  10  hogs  were  not  littered  at  the 
time  the  mortgage  was  given,  and  were  20  months  old  when  the 
action  was  begun ;  that  the  calves  were  born  in  the  spring  of  1905, 
and  were  from  8  to  11  months  old  when  the  action  was  commenced. 
There  is  also  a  finding  that  the  property  in  controversy  was  in 
the  possession  of  the  mortgagor  at  the  time  of  the  attachment, 
and  that  plaintiff  had  never  taken  possession  of  the  same  under 
his  mortgage.  Another  finding  is  that  all  of  the  increase  had 
passed  the  nurture  period  and  were  separated  from  their  mothers. 
The  plaintiff  filed  a  motion  for  judgment  on  the  special  findings, 
notwithstanding  the  general  verdict.  This  was  ovei-ruled,  and 
judgment  rendered  in  favor  of  the  defendants,  which  the  plaintiff 
seeks  by  this  proceeding  to  reverse. 

The  principal  question  involved  is  whether  the  increase  is  sub- 
ject to  the  lien  of  the  mortgage,  notwithstanding  the  fact  that 
the  nurture  period  had  passed,  and  that  they  had  ceased  to  fol- 
low their  mothers,  and  were  separated  therefrom.  In  Corbin  v. 
Kincaid,  33  Kan.  649,  7  Pac.  145,  it  was  held  that  a  mortgage  on 


Limitations  on  and  Interests  in  Property  253 

domestic  animals,  -whicli  in  terms  covers  the  increase,  is  valid  as 
to  the  increase.     The  question  of  the  duration  of  the  mortgage 
lien  was  not  involved.     A  chattel  mortgage  given  upon  a  crop 
after  the  seed  sown  has  sprouted  covers  the  grain,  because  the 
latter  is  an  accession  to  what  was  already  in  existence  when  the 
mortgage  was  given ;  and,  by  analogy  to  this  doctrine  the  increase 
of  domestic  animals,  conceived^but  unborn  at  the  time  the  mort- _ 
gage  is  given,  may  be  included. therein.     This  rule  is  recognized 
in  6  Cyc.  1049,  with  the  following  modification:    ^^But  as  against 
a  purchaser  without  actual  or  constructive  knowledge  of  the  mort- 
gage,  theTien  does  not  continue  after  a  suitable  period  ofnurlure^ 
lias~elapsgd. '  '^  To  the  same  effect  is  Jones  on  Chattel  Mortgages, 
§  149.     The  authorities  cited  in  support  of  the  foregoing  texts, 
so  far  as  we  have  examined  them,  are  eases  in  which  the  increase 
was  not  mentioned  in  the  mortgage.     The  authorities  quite  gen- 
erally sanction  the  rule  that  a  mortgage  on_domestic_anTmals 
covers  the  increase,  even  though  it  is  silent  with  reference  thereto, 
and  there  may  be  reasonable"  grounds  f  or  liolding  that,  where  the 
mortgage  is  silent  with  reference  to  increase,  and  is  given  during 
the  period  of,  gestation^  the  lien  should  cover  the  increase  only 
during  the  nurture  period,~but  it"is~not  necessary  to  decide  that  in  ^ 
this  ease.)  Some  of  the  eases  which  restrict  the  lien  to  the  nur- 
ture period  are  Forman,  etc.,  v.  Proctor,  etc.,  9  B.  Mon.  124; 
Thorpe  Bros.  &  Co.  v.  Cowles,  55  Iowa  408,  7  N.  W.  677;  Kel- 
logg V.  Lovely,  46  Mich.  131,  8  N.  W.  699,  41  Am.  Rep.  151; 
"Winter  v.  Landphere,  42  Iowa  471 ;  Darling  v.  Wilson,  60  N.  H. 
59,  49  Am.  Rep.  305 ;  Rogers  v.  Highland,  69  Iowa  504,  29  N.  W. 
429,  58  Am.  Rep.  230 ;  Rogers  v.  Gage,  59  Mo.  App.  107.    In  Dar- 
ling V.  Wilson,  supra,  the  court  said:     "There  being  nothing  in 
the  mortgage  showing  an  intention  to  create  a  lien  upon  the  increase 
of   stock   mortgaged,    the  lien,    existing   only   as   an   incident   to 
the   mortgage,   would,   as  between  the   parties,   continue  so  long 
only  as  is  necessaiy  for  the  suitable  nurture  of  the  increase.    This 
view  is  supported  upon  sound  principles."     In   Funk  v.  Paul, 
64  Wis.  35,  24  N.  W.  419,  54  Am.  Rep.  576,  the  view  taken  in 
Darling  v.  Wilson  is  criticized,  and  the  court  used  this  language : 
There  would   seem  to   be   no   valid   reason   for  terminating  the 
lien  as  against  the  mortgagor,  merely  because  the  period  of  'suit- 
able nurture' had  passed.    Such  nurture  did  not  give  the  lien,  and 
itsjermination  could  not  take  it  away  as  against  the  mortgagor/^' 
The^  increase  was  not  mentioned  in  the  mortgage,  and  the  court, 
while  holding  the  mortgage  a  valid  lien  thereon  as  between  the 


254  Cases  on  Personal.  Property 

parties,  declared  that  it  would  not  be  valid  as  against  bone  fide 
purchasers  without  notice.  In  the  present  case  the  mortgage  in 
terms  described  the  increase,  and,  in  our  opinion,  must  be  held  a 
valid  lien  upon  such  increase  as  had  an  actual  or  potential  exist- 
ence  when  the  mortgage  was  executed,  and  binding  jiot  only  as 
to  the  parties  themselves,  but  as  to  third  parties.  There  appears 
to  be  no  reason  why  the  lien  should  be  restricted  to  the  period 
during  which  the  young  are  following  their  mothers.  The  mort- 
gage itself,  by  the  mention  of  the  increase,  gives  to  subsequent 
puTchasers  and  creditors  sufficient  notice  to  place  them  upon 
inquiry  as  to  what  animals  the  increase  consists  of.  Cases  of 
hardship  frequently  arise  where  live  stock  covered  by  a  chattel 
mortgage  have  altered  their  appearance  by  growth,  or  have  been 
removed  to  another  county,  and  all  the  notice  which  a  bona  fide 
purchaser  may  have  that  a  mortgage  is  in  existence  afi'ecting  them 
is  constructive  notice.     *     *     * 

There  is  another  principle  of  law  which  is  not  argued  in  the 
briefs,  but  Avhich  in  our  opinion  has  a  vital  bearing  upon  this 
case.  The  common-law  doctrine  that  a  chattel  mortgage  can  only 
operate  on  property  having  an  actual  and  potential  existence  at 
the  time  the  mortgage  is  executed  has  often  been  recognized,  in 
previous  decisions,  as  the  law  in  this  state.  Unless  the  property 
can  be  said  to  be  in  existence,  there  is  nothing  for  the  mortgage 
to  operate  upon,  and  it  is  void.  Long  v.  Hines,  40  Kan.  216,  16 
Pac.  339,  10  Am.  St.  Rep.  189,  and  Id.,  220,  19  Pac.  796,  10  Am. 
St.  Rep.  192.  So  far  as  third  persons  are  concerned,  it  can  never 
be  treated  as  a  chattel  mortgage.  Cameron,  Hull  &  Co.  v.  Marvin, 
26  Kan.  612;  Townsend  v.  Allen,  62  Kan.  311,  62  Pac.  1008,  52 
L.  R.  A.  323,  84  Am.  St.  Rep.  388 ;  Bank  v.  Mcintosh,  72  Kan. 
603,  84  Pac.  535.  Between  the  parties  the  mortgage  may  be  valid, 
and  if,  after  it  comes  into  existence,  the  mortgagee  take  posses- 
sion, he  may  hold  the  property  against  the  mortgagor,  or  against 
third  persons,  as  a  pledge  for  the  security  of  his  debt.  Cameron, 
Hull  &  Co.  v.  Marvin,  supra.  The  application  of  this  rule  to  the 
case  at  bar  demonstrates  that,  as  to  the  calves,  which  from  the 
findings  of  the  jury  it  appears  could  not  have  been  in  actual  or 
potential  existence  at  the  time  the  mortgage  was  executed,  the 
judgment  is  erroneous.  The  finding  is  that  the  calves  were  from 
8  to  11  months  old  at  the  time  the  action  was  commenced,  Decem- 
ber 30,  1905.  The  oldest  calves  must  have  been  dropped  about 
the  first  of  February,  1905.  The  dat^  of  the  mortgage  is  April 
5,  1904.     The  period  of  gestation  in  cows  is  about  dVo  months. 


Limitations  on  and  Interests  in  Property  255 

This  leaves  a  margin  of  about  10  days  which,  it  is  true,  is  slight ; 
but  the  burden  rested  upon  the  mortgagee  to  establish  the  fact 
that  the  increase  was  in  actual  or  potential  existence  when  the 
mortgage  was  executed.  Thorpe  Bros.  &  Co.  v.  Cowles,  55  Iowa 
408,  7  N.  W.  677.  The  hogs  were  found  to  be  20  months  old 
December  30,  1905.  They  were  conceived,  therefore,  about^ecem- 
ber  30,  1903,  several  months  prior  to  the  date  of  the  mortgage, 
"and,  bemg  in  potential  existence,  like  a  crop  of  grain,  the  seed 
of  which  has  sprouted,  were  properly  the  subject  of  a  mortgage 
TTeTT;  The  juryTound  the  aggregate  value  of  the  hogs  and  calves 
lo^e  $180.  The  value  of  the  calves,  apart  from  that  of  the  hogs, 
was  not  found,  nor  does  the  aggregate  value  of  both,  as  found  by 
the  jury,  correspond  with  the  values  alleged  in  the  pleadings  and 
affidavit. 

The  judgment  will  therefore  be  reversed,  and  the  cause 
remanded,  in  order  that  the  aggregate  value  of  each  may  be  ascer- 
tained, and  the  plaintiff  will  then  be  entitled  to  recover  the  value 
of  the  hogs,  and  the  defendant  the  value  of  the  calves.^ 


Human  Bodies.  / 


LARSON  V.  CHASE. 


47  Minn.  307,  50  N.  W.  238,  28  Am.  St.  Rep.  370, 
UL.R.A.85.    1891. 

The  facts  are  stated  in  the  opinion. 

Mitchell,  J, — This  was  an  action  for  damages  for  the  unlawful 
mutilation  and  dissection  of  the  body  of  plaintiff's  deceased  hus- 
band. The  complaint  alleges  that  she  was  the  person  charged  with 
the  bunal  of  the  body,  and  entitled  to  the  exclusive  charge  and 
control  of  the  same.  The  only  damages  alleged  are  mental  suffer- 
ing and  nervous  shock.  A  demurrer  to  the  complainant,  as  not 
stating  a  cause  of  action,  was  overruled,  and  the  defendant 
appealed. 

The  contentions  of  defendant  may  be  resolved  into  two  propo- 
sitions: First.  That  the  widow  has  no  legal  interest  in  or  right 
to  the  body  of  her  deceased  husband,  so  as  to  enable  her  to  main- 

8  See  Childs'  Personal  Property,  §§110,  203. 


256  Cases  on  Personal  Property 

tain  an  action  for  damages  for  its  mutiliation  or  disturbance; 
that,  if  any  one  can  maintain  such  an  action,  it  is  the  personal 
representative.  Second.  That  a  dead  body  is  not  property,  and 
that  mental  anguish  and  injury  to  the  feelings,  independent  of 
any  actual  tangible  injury  to  person  or  property,  constitute  no 
ground  of  action.  Time  will  not  permit,  and  the  occasion  does 
not  require  us  to  enter  into  any  extended  discussion  of  the  his- 
tory of  the  law,  civil,  common,  or  ecclesiastical,  of  burial  and  the 
disposition  of  the  body  after  death.  A  quite  full  and  interesting 
discussion  of  the  subject  will  be  found  in  the  report  of  the  referee 
(Hon.  S.  B.  Ruggles)  in  Re  Widening  of  Beekman  Street,  4  Bradf. 
Sur.  503.  See,  also,  Peirce  v.  Proprietors,  10  R.  I.  227 ;  19  Amer. 
Law  Rev.  251;  10  Alb.  Law  J.  71.  Upon  the  questions  who  has 
the  right  to  the  custody  of  a  dead  body  for  the  purpose  of  burial, 
and  what  remedies  such  person  has  to  protect  that  right,  the  Eng- 
lish common-law  authorities  are  not  veiy  helpful  or  particularly 
in  point,  for  the  reason  that  from  a  very  early  date  in  that  coun- 
try the  ecclesiastical  courts  assumed  exclusive  jurisdiction  of  such 
matters.  It  is  easy  to  see,  therefore,  why  the  common  law  in  its 
early  stages  refused  to  recognize  the  idea  of  property  in  a  corpse, 
and  treated  it  as  belonging  to  no  one  unless  it  was  the  church. 
The  repudiation  of  the  ecclesiastical  law  and  of  ecclesiastical  courts 
by  the  American  colonies  left  the  temporal  courts  the  sole  pro- 
tector of  the  dead  and  of  the  living  in  their  dead.  Inclined  to 
follow  the  precedents  of  the  English  common  law,  these  courts 
were  at  first  slow  to  realize  the  changed  condition  of  things,  and 
the  consequent  necessity  that  they  sliould  take  cognizance  of  these 
matters  and  administer  remedies  as  in  other  analogous  cases. 
This  has  been  accomplished  by  a  process  of  gradual  development, 
and  all  courts  now  concur  in  holding  that  the  right  to  the  posses- 
sion of  a  dead  body  for  the  purposes  of  decent  burial  belongs  to 
those  most  intimately  and  closely  connected  with  the  deceased  by 
domestic  ties,  and  that  this  is  a  right  which  the  law  will  recog- 
nize and  protect.  The  general,  if  not  universal,  doctrine  is  that 
this  right  belongs  to  the  surviving  husband  or  wife  or  to  the 
next  of  kin;  and,  while  there  are  few  direct  authorities  upon  the 
subject,  yet  we  think  the  general  tendency  of  the  courts  is  to  hold 
that,  in  the  absence  of  any  testamentary  disposition,  the  right  of 
the  surviving  wife  (if  living  with  her  husband  at  the  time  of 
his  death)  is  paramount  to  that  of  the  next  of  kin.  This  is  in 
accordance,  not  only  with  common  custom  and  general  sentiment, 
but  also,  as  we  think,  with  reason.    The  wife  is  certainly  nearer  in 


Limitations  on  .vnd  Interests  in  Proi'Erty  257 

point  of  relationsliip  and  affection  than  any  otlier  person.  She 
is  the  constant  companion  of  her  husband  during  life,  bound  to 
him  by  the  closest  ties  of  love,  and  should  have  the  paramount 
right  to  render  the  last  sacred  services  to  his  remains  after  death. 
But  this  right  is  in  the  nature  of  a  sacred  tinist,  in  the  perform- 
ance of  which  all  are  interested  who  were  allied  to  the  deceased 
by  the  ties  of  family  or  friendship,  and,  if  she  should  neglect 
or  misuse  it,  of  course  the  courts  would  have  the  power  to  regu- 
late and  control  its  exercise.  We  have  no  doubt,  therefore,  that 
the  plaintiff  had  the  legal  right  to  the  custody  of  the  body  of  her 
husband  for  the  pui-poses  of  presei'vation,  preparation,  and  burial, 
and  can  maintain  this  action  if  maintainable  at  all. 

The  doctrine  that  a  corpse  is  not  property  seems  to  have  had 
its  origin  in  the  dictum  of  Lord  Coke,  (3  Co.  Inst.  203),  where,  in 
asserting  the  authority  of  the  church,  he  says:     *'It  is  to  be 
observ^ed  that  in  every  sepulchre  that  hath  a  monument  two  things 
are  to  be  considered,  viz.,  the  monument,  and  the  sepulture  or 
burial  of  the  dead.     The  burial  of  the  cadaver  that  is  caro  data 
verniibus  [flesh  given  to  worms]  is  nullius  in  banis,  and  belongs 
to  ecclesiastical  cognizance;  but  as  to  the   monument  action   is 
given,  as  hath  been  said,  at  the  common  law,  for  the  defacing 
thereof."     If  the  proposition  that  a  dead  body  is  not  property 
rests  on  no  better  foundation  tlian  this  etymology  of  the  word 
"cadaver,"  its  correctness  would  be  more  than  doubtful.     But 
while  a  portion  of  this  dictum,  severed  from  its  context,  has  been 
repeatedly  quoted  as  authority  for  the  proposition,  yet  it  will  be 
observed  that  it  is  not  asserted  that  no  individual  can  have  any 
legal  interest  in  a  corpse,  but  merely  that  the  burial  is  nullius  im 
bonis,  which  was  legally  true  at  common  law  at  that  time,  as  the 
whole  matter  of  sepulture  and  custody  of  the  body  after  burial 
was  within  the  exclusive  cognizance  of  the  church  and  the  ecclesias- 
tical courte.     But  whatever  may  have  been  the  rule  in  England 
under  the  ecclesiastical  law,  and  while  it  may  be  true  still  that 
a  dead  body  is  not  property  in  the  common  commercial  sense  of 
that  term,  yet  in  this  country  it  is,  so  far  as  we  know,  universally 
held  that  those  who  are  entitled  to  the  possession  and  custody 
of  it  for  purposes  of  decent  burial  have  certain  legal  rights  to. 
and  in  it  which  the  law  recognizes  and  will  protect.     Indeed,  the 
mere  fact  that  a  person  has  exclusive  rights  over  a  body  for  the 
purposes  of  burial  leads  necessarily  to  the  conclusion  that  it  is 
his  property  in  the  broadest  and  most  general  sense  of  that  term, 
viz.,  something  over  which  the  law  accords  him  exclusive  con- 
C.P.P._17 


258  Cases  on  Personal  Property 

trol.  But  tliis  whole  subject  is  only  obscured  and  confused  by 
discussing  the  question  whether  a  corpse  is  property  in  the  ordi- 
nary commercial  sense,  or  whether  it  has  any  value  as  an  article  of 
traffic.  The  important  fact  is  that  the  custodian  of  it  has  a  legal 
right  to  its  possession  for  the  purposes  of  preservation  and  burial, 
and  that  any  interference  with  that  right  by  mutilating  or  other- 
wise disturbing  the  body  is  an  actionable  wrong.  And  we  think 
it  may  be  safely  laid  down  as  a  general  rule  that  an  injury  to  any 
right  recognized  and  protected  by  the  common  law  will,  if  the 
direct  and  proximate  consequence  of  an  actionable  wrong,  be  a 
subject  for  compensation. 

It  is  also  elementary  that  while  the  law  as  a  general  rule  only 
gives  compensation  for  actual  injury,  yet,  whenever  the  breach 
of  a  contract  or  the  invasion  of  a  legal  right  is  established,  the 
law  infers  some  damage,  and,  if  no  evidence  is  given  of  any  par- 
ticular amount  of  loss,  it  declares  the  right  by  awarding  nominal 
damages.  Every  injury  imports  a  damage.  Hence  the  complaint 
stated  a  cause  of  action  for  at  least  nominal  damages.  "We  think 
it  states  more.  There  has  been  a  great  deal  of  misconception  and 
confusion  as  to  when,  if  ever,  mental  suffering,  as  a  distinct  ele- 
ment of  damage,  is  a  subject  for  compensation.  *  *  *  Wherever 
the  act  complained  of  constitutes  a  violation  of  some  legal  right 
of  the  plaintiff,  which  always,  in  contemplation  of  law,  causes 
injury,  he  is  entitled  to  recover  all  damages  which  are  the  proxi- 
mate and  natural  consequence  of  the  wrongful  act.  That  mental 
suffering  and  injury  to  the  feelings  would  be  ordinarily  the  natural 
and  proximate  result  of  knowledge  that  the  remains  of  a  deceased 
husband  had  been  mutilated  is  too  plain  to  admit  of  argument. 
In  Meagher  v.  Driscoll,  99  Llass,  281,  where  the  defendant  entered 
upon  plaintift''s  land,  and  dug  up  and  removed  the  dead  body  of 
his  child,  it  was  held  that  plaintiff  might  recover  compensation 
for  the  mental  anguish  caused  thereby.  It  is  true  that  in  that 
case  the  court  takes  occasion  to  repeat  the  old  saying  that  a  dead 
body  is  not  property,  and  makes  the  gist  of  the  action  the  tres- 
pass upon  plaintiff's  land;  but  it  would  be  a  reproach  to  the  law 
if  a  plaintiff's  right  to  recover  for  mental  anguish  resulting  from 
the  mutilation  or  other  disturbance  of  the  remains  of  his  dead 
should  be  made  to  depend  upon  whether  in  committing  the  act 
the  defendant  also  committed  a  technical  trespass  upon  plaintiff's 
premises,  while  everybody's  common  sense  would  tell  him  that  the 
real  and  substantial  wrong  was  not  the  trespass  on  the  land,  but 
the  indignity  to  the  dead.  Order  affirmed!* 

TSee  Childs'  Personal  Property,  §111. 


Limitations  on  and  Interests  in  Property        '    259 
KEYES  V.  KONKEL  et  al.  ^"^  ^' 

119  Mich.  550,  78  X.  W.  649,  75  Am.  St.  Rep ^ 423, 
44  L.  R.  A.  242.     1899. 

Replevin  for  dead  body.  Judgment  for  plaintiff,  and  defend- 
ant appeals. 

The  facts  are  stated  in  the  opinion. 

]\IoNTGOMERY,  J. — This  is  an  action  of  replevin  to  recover  the 
dead  body  of  plaintiff's  brother.  The  deceased  died  at  a  hospital, 
and  defendants,  who  are  undertakers,  took  charge  of  the  corpse 
by  request  of  the  hospital  authorities.  The  plaintiff,  after  the 
defendants  had  performed  some  services  in  fitting  the  body  for 
burial,  demanded  possession  of  the  body,  and  defendants  refused 
to  deliver  the  body  up  unless  paid  for  their  services.  Thereupon 
plaintiff  instituted  this  suit. 

The  question  presented  is  whether  replevin  will  lie  in  this  state 
for  a  human  corpse.  The  question  is  happily  more  novel  than 
difficult.  The  statute  (section  6856,  How.  Ann.  St.)  provides  for 
the  proceeding  of  replevin  in  the  justice  court,  and  requires  an 
affidavit  by  the  plaintiff  setting  forth  that  his  "personal  goods 
and  chattels"  have  been  unlawfully  taken  or  are  unlawfully 
detained.  The  replevin  statutes  (How.  Ann.  St.  §§  8346,  8347) 
provide  for  a  judgment  for  defendant,  when  the  plaintiff  fails  in 
his  case,  for  a  return  of  the  property  or  for  its  value.  It  is  appar- 
ent that  no  return  of  the  property  can  be  ordered  in  case  of  the 
replevin  of  a  dead  body,  and  it  is  equally  true  that  its  value  in 
money  can  neither  be  appraised  nor  ascertained  by  a  jury.  It 
was  formerly  held  in  England  that  there  can  be  no  property  in  a 
human  body.  Williams  v.  Williams,  20  Ch.  Div.  659,  also  reported 
in  21  xVm.  Law.  Reg.  508 ;  Guthrie  v.  Weaver,  1  Mo.  App.  141 ; 
Meagher  v.  DriscoU,  99  Mass.  284;  Pierce  v.  Cemetery,  10  R.  I. 
227;  Weld  v.  Walker,  130  ]\Iass.  422.  In  certain  modem  Ameri- 
can cases,  a  dead  body  has  been  said  to  be  a  quasi  property,  and 
the  right  to  control  and  bury  it,  and  to  recover  against  one  who 
mutilates  the  corpse,  has  been  maintained.  Pierce  v.  Cemetery, 
supra;  Weld  v.  Walker,  supra;  Burney  v.  Hospital  (Mass.)  47 
N.  E.  401;  Larson,  v.  Chase  (Minn.)  50  N.  W.  238;  Foley  v. 
Phelps  (Sup.)  37  N.  Y.  471.  Recovery  for  the  refusal  of  the  right 
to  bury  or  for  mutilation  of  the  body  is  rather  based  upon  an 


260  Cases  on  Personal.  Property 

infringement  of  a  right  than  upon  the  notion  that  the  property 
of  plaintiff  has  been  interfered  with.  The  recovery  in  such  eases 
is  not  for  the  damage  to  the  corpse  as  property,  but  damage 
to  the  next  of  kin  by  infringement  of  his  right  to  have  the  body 
delivered  to  him  for  burial  without  mutilation.  In  numerous 
cases  equity  has  taken  jurisdiction  to  prevent  interference  with 
the  control  of  the  dead  body  by  persons  entitled  to  control  it.  See 
Weld  V.  Walker,  130  Mass.  422 ;  Pierce  v.  Cemetery,  10  R.  I.  227. 
And  in  Reg.  v.  Fox,  2  Q.  B.  246,  the  remedy  by  mandamus  to  a 
jailer  was  granted.  But  on  every  consideration  we  are  of  the 
opinion  that  the  replevin  cannot  be  maintained.  It  is  not  con- 
tended that  the  defendants  are  entitled  to  maintain  a  lien.  It 
is  obvious  that  return  cannot  be  adjudged.  The  only  proper  judg- 
ment is  one  dismissing  the  proceeding,  with  costs  of  all  the  courts 
to  the  defendants.    It  is  so  ordered.    The  other  justices  concurred. ^ 


Wild  Animals. 
GEER  v.  STATE  OF  CONNECTICUT. 

161  U.  S.  519,  16  Sup.  Ct.  Rep.  600,  40  L.  Ed.  793.  1S96. 

[Action  for  violation  of  state  game  laws.  Edgar  M.  Geer  was 
convicted  in  the  lower  courts  of  violating  the  game  laws  of  the 
State  of  Connecticut.  The  conviction  was  aiSrmed  by  the  Supreme 
Court  of  that  state.  (61  Conn.  144,  22  Atl.  1012).  The  defend- 
ant appealed  to  the  U.  S.  Supreme  Court-,  alleging  that  the  statute 
upon  which  the  prosecution  was  based  violated  the  constitution 
of  the  United  States. 

The  facts  pertinent  to  the  case,  as  stated  by  Mr.  Justice  Field, 
are  as  follows:  "The  present  proceeding  was  commenced  by  an 
information  presented  by  the  assistant  district  attorney  of  the 
City  of  New  London,  Conn.,  against  the  defendant,  Edgar  ]M.  Geer, 
in  the  police  court  of  that  city,  charging  that  he  did,  on  the  19th 
day  of  October,  1889,  unlawfully  receive  and  have  in  his  posses- 
sion certain  woodcock,  ruffled  grouse,  and  quail,  killed  within  the 

8  As  to  right  of  action  against  one  who  performs  an  autopsy  on  a  dead  body 
without  the  consent  of  the  parent,  guardian,  or  nest  of  kin,  see  Burney  v. 
Children's  Hospital,  169  Mass.  57,  47  N.  E.  401,  38  L.  E.  A.  413.  Myers  v. 
Duddenhauser  (Ky.  App.),  90  S.  W.  1049,  5  L.  E.  A.  (N.  S.)  1096. 

See  Childs'  Personal  Property,  §111. 


Limitations  on  and  Interests  in  Property  261 

st-ate  after  the  1st  day  of  October,  1889,  with  the  wrongful  and 
unlawful  intention  to  procure  their  transportation  without  the 
limits  of  the  state."] 

he  state  statutes  in  question  are  as  follows : 

"Every  person  who  sliall  buy,  sell,  expose  for  sale,  or  have  in 
his  possession  for  the  purpose,  or  who  shall  hunt,  pursue,  kill, 
destro3^  or  attempt  to  kill  a2iy  woodcock,  quail,  rufifled  grouse,  called 
partridge,  or  gray  squirrel  between  the  first  day  of  January  and 
the  first  day  of  October,  the  killing  or  having  in  possession  of 
each  bird  or  squirrel  to  be  deemed  a.  separate  offense.  *  *  * 
shall  be  fined  not  more  than  $30." 

*'No  person  shall  at  any  time  kill  any  woodcock,  ruffled  grouse 
or  quail  for  the  purpose  of  conveying  the  same  beyond  the  limits 
of  the  state;  or  shall  transport  or  have  in  possession,  with  intention 
to  procure  the  transportation  beyond  said  limits,  of  any  such  birds 
killed  within  this  state.  The  reception  by  any  person  within  this 
state  of  any  such  bird  or  birds  for  shipment  to  a  point  without 
the  state  shall  be  prima  facie  evidence  that  said  bird  or  birds  were 
killed  within  the  state  for  the  purpose  of  carrying  the  same  beyond 
its  limits." 

]\Ir.  Justice  "White  delivered  the  opinion  of  the  court. 

By  the  statutes  of  the  state  of  Connecticut,  referred  to  in  the 
statement  of  facts,  the  open  season  for  the  game  birds  mentioned 
therein  was  from  the  1st  day  of  October  to  the  1st  day  of  January. 
The  birds  which  the  defendant  was  charged  with  unlawfully  hav- 
ing in  his  possession  on  the  19th  day  of  October,  for  the  purpose 
of  unlawful  transportation  beyond  the  state,  were  alleged  to  have 
been  killed  within  the  state  after  the  1st  day  of  October.  They 
were  therefore  killed  during  the  open  season.  There  was  no  charge 
that  they  had  been  unlawfully  killed  for  the  purpose  of  being 
transported  outside  of  the  state.  The  offense,  therefore,  charged, 
was  the  pos.session  of  game  birds,  for  the  purpose  of  transport- 
ing them  beyond  the  state,  which  birds  had  been  lawfully  killed 
within  the  state.  The  court  of  last  resort  of  the  state  held,  in  inter- 
preting the  statute  already  cited,  by  the  light  afforded  by  previous 
enactments,  that  one  of  its  objects  was  to  forbid  the  killing  of 
birds  within  the  state  during  the  open  season,  for  the  purpose 
of  transporting  them  beyond  the  state,  and  also  additionally  as 
a  distinct  offense  to  punish  the  having  in  possession,  for  the  pur- 


262  Cases  on  Personal  Property 

pose  of  transportation  beyond  the  state,  birds  lawfully  killed  within 
the  state.  The  court  found  that  the  information  did  not  charge 
the  first  of  these  offenses,  and,  therefore,  that  the  sole  offense 
which  it  covered  was  the  latter.  It  then  decided  that  the  state 
had  power  to  make  it  an  offense  to  have  in  possession,  for  the 
purpose  of  transportation  beyond  the  state,  birds  whicli  had  been 
lawfully  killed  within  the  state  during  the  open  season,  and  that 
the  statute,  in  creating  this  offense,  did  not  violate  the  interstate 
commerce  clause  of  the  constitution  of  the  United  States.  The 
correctness  of  this  latter  ruling  is  the  question  for  review.  In 
other  words,  the  sole  issue  which  the  case  presents  is,  was  it  law- 
ful, under  the  constitution  of  the  United  States  (section  8,  art.  1.), 
for  the  state  of  Connecticut  to  allow  the  killing  of  birds  within 
the  state  during  a  designated  open  season,  to  allow  such  birds, 
when  so  killed,  to  be  used,  to  be  sold,  and  to  be  bought  for  use, 
within  the  state,  and  yet  to  forbid  their  transportation  beyond 
the  state?  Or,  to  state  it  otherwise,  had  the  state  of  Connecticut 
the  power  to  regulate  the  killing  of  game  within  her  borders  so 
as  to  confine  its  use  to  the  limits  of  the  state,  and  forbid  its  trans- 
mission outside  of  the  state? 

In  considering  this  inquiry,  we,  of  course,  accept  the  interpre- 
tation affixed  to  the  state  statute  by  the  court  of  last  resort  of 
the  state.  The  solution  of  the  question  involves  a  consideration 
■of  the  nature  of  the  property  in  game  and  the  authority  which 
the  state  had  a  right  lawfully  to  exercise  in  relation  thereto. 

From  the  earliest  traditions,  the  right  to  reduce  animals  ferae 
naturae  to  possession  has  been  subject  to  the  control  of  the  law- 
giving power.     *     *     * 

The  common  law  of  England  also  based  property  in  game  upon 
the  principle  of  common  ownership,  and  therefore  treated  it  as 
subject  to  governmental  authority. 

Blackstone,  while  pointing  out  the  distinction  between  things 
private  and  those  which  are  common,  rests  the  right  of  an  indi- 
vidual to  reduce  a  part  of  this  common  property  to  possession, 
and  thus  acquire  a  qualified  ownership  in  it,  on  no  other  or  differ- 
ent principle  from  that  upon  which  the  civilians  based  such  right. 
2  Bl.  Comm.  1,  12. 

Referring  especially  to  the  common  ownership  of  game,  he  says : 

*'But,  after  all,  there  are  some  few  things  which,  notwithstand- 
ing the  general  introduction  and  continuance  of  property,  must 
still  unavoidably  remain  in  common,  being  such  wherein  nothing 
but  an  usufructuary  property  is  capable  of  being  had ;  and  there- 


Limitations  on  and  Interests  in  Property  263 

fore  they  still  belong  to  the  first  occupant  during  the  time  he  holds 
possession  of  them,  and  no  longer.  Such  (among  others)  are  the 
elements  of  light,  air,  and  water,  which  a  man  may  occupy  by 
means  of  his  windows,  his  gardens,  his  mills,  and  other  con- 
veniences. Such,  also,  are  the  generalit}'  of  those  animals  which 
are  said  to  be  ferae  naturae  or  of  a  wild  and  untamable  disposi- 
tion, which  any  man  may  seize  upon  or  keep  for  his  own  use  or 
pleasure."    2  Bl.  Comm.  14. 

"A  man  may  lastly  have  a  qualified  property  in  animals  ferae 
tmturae — propter  privHegium,  that  is,  he  may  have  the  privilege 
of  hunting,  taking,  and  killing  them  in  exclusion  of  other  per- 
sons. Here  he  has  a  transient  property  in  these  animals  usually 
called  'game'  so  long  as  they  continue  "udthin  his  liberty,  and  he 
may  restrain  any  stranger  from  taking  them  therein;  but,  the 
instant  they  depart  into  another  liberty,  this  qualified  property 
ceases.  *  *  *  j^  man  can  have  no  absolute  permanent  prop- 
erty in  these,  as  he  may  in  the  earth  and  land;  since  these  are 
of  a  vague  and  fugitive  nature,  and  therefore  can  only  admit  of  a 
precarious  and  qualified  ownership,  which  lasts  so  long  as  they 
are  in  actual  use  and  occupation,  but  no  longer."    2  Bl.  Comm.  394. 

In  stating  the  existence  and  scope  of  the  royal  prerogative, 
Blaekstone  further  says : 

"There  still  remains  another  species  of  prerogative  property, 
founded  upon  a  very  different  principle  from  any  that  have  been 
mentioned  before, — the  property  of  such  animals,  ferae  naturae, 
as  are  known  by  the  denomination  of  'game,'  with  the  right  of 
pursuing,  taking,  and  destroying  them,  which  is  vested  in  the  king 
alone,  and  from  him  derived  to  such  of  his  subjects  as  have  received 
the  grants  of  a  chase,  a  park,  a  free  warren,  or  free  fishery.  *  *  * 
In  the  first  place,  then,  we  have  already  sho\vn,  and  indeed  it 
cannot  be  denied,  that,  by  the  law  of  nature,  every  man,  from  the 
prince  to  the  peasant,  has  an  equal  right  of  pursuing  and  tak- 
ing to  his  own  use  all  such  creatures  as  are  ferae  naturae,  and 
therefore  the  property  of  nobody,  but  liable  to  be  seized  by  the 
first  occupant,  and  so  it  was  held  by  the  imperial  law  as  late  as 
Justinian's  time.  *  *  *  But  it  follows  from  the  very  end  and 
constitution  of  society  that  this  natural  right,  as  well  as  many 
others  belonging  to  man  as  an  individual,  may  be  restrained  by 
positive  laws  enacted  for  reasons  of  state  or  for  the  supposed 
benefit  of  the  community.    2  Bl.  Comm.  410. 

The  practice  of  the  government  of  England  from  the  earliest 


264  Cases  on  Personal  Property 

time  to  the  present  has  put  into  execution  the  authority  to  con- 
trol and  regulate  the  taking  of  game. 

Undoubtedly,  this  attribute  of  government  to  control  the  taking 
of  animals  ferae  naturae,  wliich  was  thus  recognized  and  enforced 
by  the  common  law  of  England,  was  vested  in  the  colonial  govern- 
ments, where  not  denied  by  their  charters,  or  in  conflict  with 
grants  of  the  royal  prerogative.  *  *  *  Kent,  in  his  Com- 
mentaries, states  the  ownership  of  animals  ferae  naturae,  to  be  only 
that  of  a  qualified  property.  2  Kent  Comm.  347.  In  most  of  the 
states,  laws  have  been  passed  for  the  protection  and  preservation 
of  game.  "We  have  been  referred  to  no  case  where  the  power  to 
so  legislate  has  been  questioned,  although  the  books  contain  cases 
involving  controversies  as  to  the  meaning  of  some  of  the  statutes. 
Com.  V.  Hall,  128  Mass.  410 ;  Com.  v.  Wilkinson,  139  Pa.  St.  298, 
21  Atl.l4;Peoplev.  0 'Neil,  TlMich.  325,  39  N.W.I.    *     *    * 

The  adjudicated  cases  recognizing  the  right  of  the  states  to 
control  and  regulate  the  common  property  in  game  are  numerous. 
In  McCrady  v.  Virginia,  94  U.  S.  395  the  power  of  the  state  of 
Virginia  to  prohibit  citizens  of  other  states  from  planting  oysters 
within  the  tide  waters  of  that  state  was  upheld  by  this  court.  In 
Manchester  v.  Massachusetts,  139  U.  S.  240,  11  Sup.  Ct.  559  the 
authority  of  the  state  of  Massachusetts  to  control  and  regulate 
the  catching  of  fish  within  the  bays  of  that  state  was  also  main- 
tained. See,  also,  Phelps  v.  Racey,  60  N.  Y.  10 ;  Magner  v.  People, 
97  111.  320;  American  Exp.  Co.  v.  People,  133  111.  649,  24  N.  E. 
758 ;  State  v.  Northern  Pac.  Exp.  Co.,  58  Minn.  403,  59  N.  W.  1100 ; 
State  V.  Rodman,  58  Minn.  393,  59  N.  W.  1098 ;  Ex  parte  Maier, 
103  Cal.  476,  37  Pac.  402 ;  Organ  v.  State,  56  Ark.  270,  19  S.  W. 
840 ;  Allen  v.  Wyckoff,  48  N.  J.  Law  93,  2  Atl.  659 ;  Roth  v.  State, 
51  Ohio  St.  209,  37  N.  E.  259 ;  Gentile  v.  State,  29  Ind.  415 ;  State 
v.  Farrell,  23  Mo.  App.  176,  and  cases  there  cited ;  State  v.  Saun- 
ders, 19  Kan.  127 ;  Territory  v.  Evans,  2  Idaho  634,  23  Pac.  115. 

While  the  fundamental  principles  upon  which  the  common  prop- 
erty in  game  rest  have  undergone  no  change,  the  development  of 
free  institutions  has  led  to  the  recognition  of  the  fact  that  the 
power  or  control  lodged  in  the  state,  resulting  from  this  common 
ownership,  is  to  be  exercised,  like  all  other  powers  of  government, 
as  a  trust  for  the  benefit  of  the  people,  and  not  as  a  prerogative 
for  the  advantage  of  the  government  as  distinct  from  the  people, 
or  for  the  benefit  of  private  individuals  as  distinguished  from  the 
public  good.  Therefore,  for  the  purpose  of  exercising  this  power, 
the  state,  as  held  by  this  court  in  Martin  v.  Waddell,  16  Pet.  410, 


Limitations  on  and  Inteeests  in  Property  265 

represents  its  people,  and  the  ownership  is  that  of  the  people  in 
their  united  sovereignty.  The  common  ownership,  and  its  result- 
ing responsibility  in  the  state,  is  thus  stated  in  a  well-considered 
opinion  of  the  supreme  court  of  California : 

"The  vnld  game  wdthin  a  state  belongs  to  the  people  in  their 
collective  sovereign  capacity.  It  is  not  the  subject  of  private  owner- 
ship, except  in  so  far  as  the  people  may  elect  to  make  it  so ;  and  they 
may,  if  they  see  fit,  absolutely  prohibit  the  taking  of  it,  or  traffic 
and  commerce  in  it,  if  it  is  deemed  necessary  for  the  protection  or 
preservation  of  the  public  good."     Ex  parte  Maier,  ubi  supra. 

The  same  view  has  been  expressed  by  the  supreme  court  of  Min- 
nesota, as  follows : 

"We  take  it  to  be  the  coiTect  doctrine  in  this  country  that  the 
ownership  of  wild  animals,  so  far  as  they  are  capable  of  ownership, 
is  in  the  state,  not  as  a  proprietor,  but  in  its  sovereign  capacity, 
as  the  representative  and  for  the  benefit  of  all  its  people  in  com- 
mon."   State  v.  Rodman,  supra. 

The  foregoing  analysis  of  the  principles  upon  which  alone  rests 
the  right  of  an  individual  to  acquire  a  qualified  ownership  in  game, 
and  the  power  of  the  state,  deduced  therefrom,  to  control  such 
ownership  for  the  common  benefit,  clearly  demonstrates  the  validity 
of  the  statute  of  the  state  of  Connecticut  here  in  controversy.  The 
sole  consequence  of  the  provision  forbidding  the  transportation  of 
game  killed  within  the  state,  beyond  the  state,  is  to  confine  the  use 
of  such  game  to  those  who  own  it, — the  people  of  that  state.  The 
proposition  that  the  state  may  not  forbid  carrying  it  beyond  her 
limits  involves,  therefore,  the  contention  that  a  state  cannot  allow 
its  own  people  the  enjoyment  of  the  benefits  of  the  property  be- 
longing to  them  in  common,  without  at  the  same  time  permitting 
the  citizens  of  other  states  to  participate  in  that  which  they  do 
not  own.  It  was  said  in  the  discussion  at  bar,  although  it  be  con- 
ceded that  the  state  has  an  absolute  right  to  control  and  regulate 
the  killing  of  game  as  its  judgment  deems  best  in  the  interest  of  its 
people,  inasmuch  as  the  state  has  here  chosen  to  allow  the  people 
within  her  borders  to  take  game,  to  dispose  of  it,  and  thus  cause 
it  to  become  an  object  of  state  commerce,  as  a  resulting  necessity 
such  property  has  become  the  subject  of  interstate  commerce; 
hence  controlled  by  the  provisions  of  article  1,  §8,  of  the  consti- 
tution of  the  United  States.  But  the  errors  which  this  argument 
involves  are  manifest.  It  presupposes  that,  where  the  killing  of 
game  and  its  sale  within  the  state  are  allowed,  it  thereby  becomes 
"commerce"  in  the  legal  meaning  of  that  word.     In  view  of  the 


266  Cases  on  Personal  Property 

authority  of  the  state  to  affix  conditions  to  the  killing  and  sale  of 
game,  predicated,  as  is  this  power,  on  the  peculiar  nature  of  such 
property  and  its  common  ownership  by  all  the  citizens  of  the  state, 
it  may  well  be  doubted  whether  commerce  is  created  by  an  authority 
given  by  a  state  to  reduce  game  within  its  borders  to  possession, 
provided  such  game  be  not  taken,  when  killed,  without  the  juris- 
diction of  the  state.  The  common  ownership  imports  the  right  to 
keep  the  property,  if  the  sovereign  so  chooses,  always  within  its 
jurisdiction  for  every  purpose.  The  qualification  which  forbids  its 
removal  from  the  state  necessarily  entered  into  and  formed  part  of 
every  transaction  on  the  subject,  and  deprived  the  mere  sale  or 
exchange  of  these  articles  of  that  element  of  freedom  of  contract 
and  of  full  ownership  which  is  an  essential  attribute  of  commerce. 
Passing, thowever,  as  we  do,  the  decision  of  this  question,  and  grant- 
ing that  the  dealing  in  game  killed  within  the  state,  under  the  pro- 
vision in  question,  created  internal  state  commerce,  it  does  not 
follow  that  such  internal  commerce  became  necessarily  the  subject- 
matter  of  interstate  commerce,  and  therefore  under  the  control  of 
the  constitution  of  the  United  States.  The  distinction  between  in- 
ternal and  external  commerce  and  interstate  commerce  is  marked, 
and  has  always  been  recognized  by  this  court.     *    *    * 

The  fact  that  internal  commerce  may  be  distinct  from  interstate 
commerce  destroys  the  whole  theory  upon  which  the  argument  of 
the  plaintiff  in  error  proceeds.  The  power  of  the  state  to  control  the 
killing  of  and  ownership  in  game  being  admitted,  the  commerce 
in  game  which  the  state  law  permitted  was  necessarily  only  in- 
ternal commerce,  since  the  restriction  that  it  should  not  become 
the  subject  of  external  commerce  went  along  with  the  grant,  and 
■was  a  part  of  it.  All  ownership  in  game  killed  wuthin  the  state 
came  under  this  condition,  which  the  state  had  the  lawful  authority 
to  impose ;  and  no  contracts  made  in  relation  to  such  property  were 
exempt  from  the  law  of  the  state  consenting  that  such  contracts 
be  made,  provided  only  they  were  confined  to  internal,  and  did 
not  extend  to  external,  commerce. 

*  *  *  The  argument  of  the  plaintift'  in  error  substantially 
asserts  that  the  state  statute  gives  an  unqualified  right  to  kill  game, 
when  in  fact  it  is  only  given  upon  the  condition  that  the  game 
killed  be  not  transported  beyond  the  state  limits.  It  was  upon  this 
power  of  the  state  to  qualify  and  restrict  the  ownership  in  game 
killed  within  its  limits  that  the  court  below  rested  its  conclusion, 
and  similar  views  have  been  expressed  by  the  courts  of  last  resort  of 
several  of  the  states.     *     *     * 


Limitations  on  and  Interests  in  Property  267 

Aside  from  the  authority  of  the  state,  derived  from  the  common 
ownership  of  game,  and  the  trust  for  the  benefit  of  its  people  which 
the  state  exercises  in  relation  thereto,  there  is  another  view  of  the 
power  of  the  state  in  regard  to  the  property  in  game,  which  is 
equally  conclusive.  The  right  to  preserve  game  flows  from  the  un- 
doubted existence  in  the  state  of  a  police  power  to  that  end,  which 
may  be  none  the  less  efficiently  called  into  play,  because,  by  doing 
so,  interstate  commerce  may  be  remotely  and  indirectly  affected. 
Kidd  V.  Pearson,  128  U.  S.  1,  9  Sup.  Ct.  6 ;  Hall  v.  De  Cuir,  95  U.  S. 
485 ;  Sherlock  v.  Allings,  93  U.  S.  99,  103 ;  Gibbons  v.  Ogden,  9 
■Wheat.  194.  Indeed,  the  source  of  the  police  power  as  to  game  birds 
(like  those  covered  by  the  statute  here  called  in  question)  flows  from 
the  duty  of  the  state  to  preserve  for  its  people  a  valuable  food 
supply.  Phelps  v.  Racey,  60  N,  Y.  10;  Ex  parte  Maier,  uhi  supra; 
Magner  v.  People,  uhi  supra,  and  cases  there  cited.     *     *     * 

Mr.  Justice  Brewer  and  Mb.  Justice  Peckham,  not  having 
heard  the  argument,  took  no  part  in  the  decision  of  this  cause. 

Mr.  Justice  Harlan  and  ]\Ir.  Justice  Field  dissent. 

Judgment  affirmed.^ 


Gas  and  Oil.. 

OHIO  OIL  CO.  V.  STATE  OP  INDIANA. 

177  V.  8. 190,  20  Sup.  Ct.  Rep.  576,  44  L.  Ed.  729.    1900. 

Action  to  restrain  waste  of  natural  gas  as  provided  for  by  statute 
in  the  state  of  Indiana. 

[The  Ohio  Oil  Co.  is  a  corporation  organized  under  the  laws  of 
Ohio,  but  authorized  to  carrj'  on  business  in  the  state  of  Indiana. 
Said  company,  in  drilling  for  oil  in  the  gas  belt  of  Indiana,  caused 
great  quantities  of  natural  gas  to  escape,  contrary  to  the  Indiana 
statute  relative  to  the  waste  of  natural  gas.  The  state  of  Indiana, 
through  its  attorney  general,  filed  a  complaint  in  the  circuit  court 
of  Madison  county,  Indiana,  against  the  Ohio  Oil  Co.,  praying  a 
temporary  injunction  to  restrain  said  defendant  Oil  Company  from 
allowing  said  natural  gas  to  escape,  and  directing  that  said  defend- 
ant be  commanded  to  confine  said  gas  in  pipes,  tanks,  etc.     The 

e  See  State  v.  Shaw,  p.  131 ;  Goff  v.  Kilts,  p.  132. 
See  Childs'  Personal  Property,  §  112. 


268  Cases  on  Personal  Property 

plaintiff  further  prayed  that  upon  the  final  hearing'  of  the  cause, 
the  defendant  be  j^erpetually  enjoined  and  prohibited  from  further 
suffering  said  gas  to  escape. 

The  circuit  court  entered  a  decree  for  the  plaintiff,  which  de- 
cree the  supreme  court  of  the  state  of  Indiana  affirmed,  whereupon 
the  defendant  Oil  Company  brought  error.] 

Mr.  Justice  White  delivered  the  opinion  of  the  court : 

The  assignments  of  error  all  in  substance  are  resolvable  into  one 
proposition,  which  is,  that  the  enforcement  of  the  provisions  of  the 
Indiana  statute  as  against  the  plaintiff  in  error  constituted  a  tak- 
ing of  private  property  without  adequate  compensation,  and__there- 
fore  amounted  to  a  denial  of  due  process  of  law  in  violation  of  the 
jFourteenth  Amendment. 

*  *  *  The  whole  contention,  therefore,  comes  to  this :  That 
property  has  been  taken  without  due  process  of  law,  in  violation 
of  the  Fourteenth  Amendment,  because  of  the  fact  that  the  thing 
taken  was  not  property,  and  could  not,  therefore,  be  brought  with- 
in the  guaranties  ordained  f oF  the  protection  6T  property. 

The  conf usiorT  o'f^hought  which  permeates  the  entire  argument 
is  two  fold:  First,  an  entire  misconception  of  the  nature  of  the 
right  of  the  surface  ovynier  to  the  gas  and  oil  as  they  are  contained 
in  their  natural  reservoir,  and  this  gives  rise  to  a  misconception  as 
to  the  scope  of  the  legislative  authority  to  regulate  the  appropria- 
tion and  use  thereof.  Second,  a  confounding,  by  treating  as  identi- 
cal, things  which  are  essentially  separate ;  that  is,  the  right  of  the 
owner  of  land  to  bore^intq  the  bosom  of_.the^earth,  and  thereby  seek 
to  reduce  the  gas  and  oil  to  possession,  and  his  owriershipjifter  the 
result  of  the  borings  has  reached  fruition  to  the  extent  of  oil  and 
gas  by  himself  actually  extracted  and  appropriated.  In  other 
words,  the  fallacy  arises  from  considering  that  the  means  which 
the  owner  of  land  has  a  right  to  use  to  obtain  a  resultjs  in  legal 
effect  the  same  as  the  result  w^hich  may  be  reached'  Wewill  develop 
the  misunderstanding  which  is  involved  in  the  matters  just  stated. 

No  time  need  be  spent  in  restating  the  general  common-law  rule 
that  the  ownership  in  fee  of  the  surface  of  the  earth  carries  with 
it  the  right  to  the  minerals  beneath,  and  the  consequent  privilege 
-of  mining  to  extract  them.  And  we  need  not,  therefore,  pause 
to  consider  the  scope  of  the  legislative  authority  to  regulate  the  ex- 
ercise of  mining  rights  and  to  direct  the  methods  of  their  enjoy- 
ment so  as  to  prevent  the  infringement  by  one  miner  of  the  rights 
of  others.    Del  Monte  Min.  &  Mill.  Co.  v.  Last  Chance  Min.  &  Mill. 


LIMITATION'S   OX    AND    INTERESTS    IN    PROPERTY  269 

Co.,  171  U.  S.  60,  43  L.  ed.  74,  IS  Sup.  Ct.  Rep.  895.  The  question 
here  arising  does  not  require  a  consideration  of  the  matters  just 
referred  to,  but  it  is  this :  Does  the  peculiar  character  of  the  sub- 
stances, oil  and  gas,  v.'hich  are  here  involved,  the  manner  in  which 
they  are  held  in  their  natural  reservoirs,  the  method  by  which  and 
the  time  when  they  may  be  reduced  to  actual  possession  or  become 
the  property  of  a  particular  person,  cause  them  to  be  exceptions  to 
the  general  principles  applicable  to  other  mineral  deposits,  and 
hence  subject  them  to  different  rules  ?  True  it  is  that  oil  and  gas, 
like  other  minerals,  are  situated  beneath  the  surface  of  the  earth, 
but  except  for  this  one  point  of  similarity,  in  many  other  respects 
they  greatly  differ.  They  have  no  fixed  situs  under  a  particular 
portion  of  the  earth's  surface  -^athin  the  area  where  they  obtain. 
They  have  the  power,  as  it  were,  of  self-transmission.  No  one  owner 
of  the  surface  of  the  earth,  vsdthin  the  area  beneath  which  the  gas 
and  oil  move,  can  exercise  his  right  to  extract  from  the  common 
reservoir,  in  which  the  supply  is  held,  without,  to  an  extent,  dimin- 
ishing the  source  of  supply  as  to  which  all  other  owners  of  the  sur- 
face must  exercise  their  rights.  The  waste  by  one  owner,  caused 
by  a  reckless  enjoyment  of  his  right  of  striking  the  reservoir,  at 
once,  therefore,  operates  upon  the  other  surface  owners.  Besides, 
whilst  oil  and  gas  are  different  in  character,  they  are  yet  one, 
because  they  are  unitedly  held  in  the  place  of  deposit.  In  Brown 
V.  Spilman,  155  U.  S.  665,  669,  670,  39  L.  Ed.  304,  305,  15  Sup.  Ct. 
Rep.  245,  247,  these  distinctive  features  of  deposits  of  gas  and  oil 
were  remarked  upon.    The  court  said: 

"Petroleum  gas  and  oil  are  substances  of  a  peculiar  character, 
and  decisions  in  ordinary  cases  of  mining  for  coal,  and  other  min- 
erals which  have  a  fixed  situs,  cannot  be  applied  to  contracts  con- 
cerning them  without  some'  qualifications.  They  belong  to  the 
owner  of  the  land,  and  are  a  part  of  it,  so  long  as  they  are  on  it 
or  in  it,  or  subject  to  his  control,  but  when  they  escape  and  go  into 
other  land,  or  come  under  another's  control,  the  title  of  the  former 
owner  is  gene.  If  an  adjoining  owner  drills  his  OAvn  land  and  taps 
a  deposit  of  oil  or  gas,  extending  under  his  neighbor's  field,  so  that 
it  comes  into  his  well,  it  becomes  his  property.  Brown  v.  Vander- 
grif  t,  80  Pa.  142, 147 ;  Westmoreland  &  C.  Natural  Gas  Co.  's  Appeal, 
25  W.  N.  C.  103. 

In  Westmoreland  &  C.  Natural  Gas  Co.  v.  De  Witt,  130  Pa.  235, 
.5  L.  R.  A.  731,  18  Atl.  724,  the  Supreme  Court  of  Pennsylvania 
considered  the  character  of  ownership  in  natural  gas  and  oil  as 


270  Cases  on  Personai,  Property 

these  substances  existed  beneath  the  surface  of  the  earth.  The 
court  said : 

"The  learned  master  says  gas  is  a  mineral,  and  while  in  situ 
is  part  of  the  land,  and  therefore  possession  of  the  land  is  posses- 
sion of  the  gas.  But  this  deduction  must  be  made  with  some  quali- 
fications. Gas,  it  is  time,  is  a  mineral;  but  it  is  a  mineral  with 
peculiar  attributes,  which  require  the  application  of  precedents 
arising  out  of  ordinary  mineral  rights,  with  much  more  careful 
consideration  of  the  principles  involved  than  of  the  mere  decisions. 
"Water,  also,  is  a  mineral,  but  the  decisions  in  ordinary  cases  of 
mining  rights,  etc.,  have  never  been  held  as  unqualified  precedents 
in  regard  to  flowing  or  even  to  percolating  waters.  Water  and  oil, 
and  still  more  strongly  gas,  may  be  classed  by  themselves,  if  the 
analogy  be  not  too  fanciful,  as  minerals  ferae  naturae.  In  common 
with  animals,  and  unlike  other  minerals,  they  have  the  power  and 
the  tendency  to  escape  without  the  volition  of  the  owner.  Their 
'fugitive  and  wandering  existence  within  the  limits  of  a  particular 
tract  is  uncertain,'  as  said  by  Chief  Justice  Agnew  in  Brown  v. 
Vandergrift,  80  Pa.  147,  148,  *  *  *,  They  belong  to  the  owner 
of  the  land,  and  are  a  part  of it-SoJpng.as  they  are  on  Qr^Ti  it, 
and  are  subject  tohis  control;  but  when  they  escape  and  go  into 
atHerTandTo'Fcome  under  another's  control,  the  title  of  the  former 
owner  is  gone.  Possession^  of  the  land,  therefore,  is  not  neceasaribL 
possession  of  the  gas." 

"l^'H^evTWheeler,  157  Pa.  324,  22  L.  R.  A.  141,  27  Atl.  714, 
the  question  involved  in  the  cause  was  the  right  of  a  land  owner 
who  had  a  gas  well  on  his  own  land  to  complain  of  the  escape  of 
gas  from  a  well  situated  on  the  land  of  another.  After  adverting 
to  the  rule  embodied  in  the  maxim,  Sic  utere  tuo  ut  aliennm  non 
Iccdas,  and  after  referring  to  the  exceptional  nature  of  the  right 
to  acquire  ownership  in  natural  gas  and  oil,  it  was  decided  that 
the  complainant  was  not  entitled  to  relief.  The  court  said  (157 
Pa.  340,  341,  22  L.  R.  A.  147,  148,  27  Atl.  719,  720)  : 

''Now,  it  is  doubtless  true  that  the  public  has  a  sufficient  interest 
in  the  preservation  of  oil  and  gas  from  waste  to  justify  legislation 
upon  this  subject.  Something  has  been  done  in  this  direction 
already  by  the  acts  regulating  the  plugging  of  abandoned  wells. 
*  *  *  In  the  disposition  he  may  make  of  it  [private  property] 
he  is  subject  to  two  limitations.  He  must  not  disregard  his  obli- 
gations to  the  public.  He  must  not  disregard  his  neighbor's  rights. 
If  he  uses  his  product  in  such  a  manner  as  to  ^dolate  any  rule  of 
public  policy,   or  any  positive  provision  of  the  Avritten  law,  he 


Limitations  on  and  Interests  in  Property  271 

brings  himself  ^vithin  the  reach  of  the  courts.  If  the  use  he  makes 
of  his  own,  or  its  waste,  is  injurious  to  the  property  or  the  health 
of  others,  such  use  or  waste  may  be  restrained,  or  damages  recov- 
ered therefor;  but,  subject  to  these  limitations,  his  power  as  an 
owner  is  absolute  until  the  legislature  shall,  in  the  interest  of  the 
public,  as  consumers,  restrict  and  regulate  it  by  statute. "     *     *     * 

A  brief  examination  of  the  Indiana  decisions  on  the  subject  of 
oil  and  natural  gas,  and  the  right  to  acquire  ownership  thereto 
will  make  it  apparent  that  from  the  peculiar  nature  of  these  sub- 
stances courts  of  that  state  have  announced  the  same  rule  as  that 
recognized  by  this  court  in  Brown  v.  Spilman,  155  U.  S.  665,  669, 
670,  39  L.  Ed.  304,  305,  15  Sup.  Ct.  Rep.  245,  and  which  has  been 
applied  by  the  Supreme  Court  of  the  State  of  Pennsylvania.    *    *    * 

"It  has  been  settled  in  this  state  that  natural  gas,  when  brought 
to  the  surface  of  the  earth  and  placed  in  pipes  for  transportation, 
is  property,  and  may  be  the  subject  of  interstate  commerce.  State 
V.  Indiana  &  0.  Oil,  Gas  &  Min.  Co.,  120  Ind.  575,  6  L.  R.  A.  579, 
22  N.  E.  778.  Water,  petroleum,  oil,  and  gas  are  generally  classed 
by  themselves  as  minerals  possessing  in  some  degree  a  kindred 
nature." 

After  quoting  authorities  relating  to  subterranean  currents  of 
water,  and  treating  gas  and  oil  before  being  reduced  to  possession 
as  of  a  kindred  nature,  the  court  said : 

"Like  water  it  is  not  the  subject  of  property  except  while  in 
actual  occupanc5%  and  a  grant  of  either  water  or  oil  is  not  a  grant 
of  the  soil  or  of  anything  for  which  ejectment  will  lie." 

The  case  of  Brown  v.  Vandergrift,  80  Pa.  142,  from  which  we 
have  previously  quoted,  was  then  referred  to,  and  the  analogies 
Jbetween  oil  and  gas  and  animals  ferae  naturae  were  approved  and 
adopted.    *    *    * 

"Without  pausing  to  weigh  the  reasoning  of  the  opinions  of  the 
Indiana  court  in  order  to  ascertain  whether  they  in  every  respect 
harmonize,  it  is  apparent  that  the  cases  in  question,  in  accord  with 
the  rule  of  general  law,  settle  the  rule  of  property  in  the  state  of 
Indiana  to  be  as  follows :  Although  in  virtue  of  his  proprietorship 
the  owner  of  the  surface  may  bore  wells  for  the  purpose  of  extract- 
ing natural  gas  and  oil  until  these  substances  are  actually'-  reduced 
by  him  to  possession,  he  has  no  title  whatever  to  them  as  owner. 
That  is,  he  has  the  exclusive  right  on  his  own  land  to  seek  to  acquire 
them,  but  they  do  not  become  his  property  until  the  effort 'ITlis 
resulted  in  dominion  and  control  by  actual  possession.  It  is  alsl5 
clear  from  the  Indiana  cases  cited  that,  in  the  absence  of  regula- 


272  Cases  on  Personal  Property 

tion  by  law,  every  owner  of  the  surface  within  a  gas  field  may 
prosecute  his  efforts  and  may  reduce  to  possession  all  or  every 
part,  if  possible,  of  the  deposits,  without  violating  the  rights  of 
the  other  surface  owners. 

If  the  analogy  between  animals  ferae  naturae  and  mineral  deposits 
of  oil  and  gas,  stated  by  the  Pennsylvania  court  and  adopted  by 
the  Indiana  court,  instead  of  simply  establishing  a  similarity  of 
relation,  proved  the  identity  of  the  two  things,  there  would  be  an 
end  of  the  case.  This  follows  because  things  which  are  ferae  naturae 
belong  to  the  ''negative  community;"  in  other  words,  are  public 
things  subject  to  the  absolute  control  of  the  state,  which,  although 
it  allows  them  to  be  reduced  to  possession,  may  at  its  will  not  only 
regulate,  but  wholly  forbid,  their  future  taking.  Geer  v.  Con- 
necticut, 161  U.  S.  519,  525,  40  L.  Ed.  793,  795,  16  Sup.  Ct.  Rep. 
600.  But  whilst  there  is  an  analogy  between  animals  ferae  naturae 
and  the  moving  deposits  of  oil  and  natural  gas,  there  is  not  identity 
between  them.  *  *  *  In  things  ferae  naturae  all  are  endowed 
with  the  power  of  seeking  to  reduce  a  portion  of  the  public  prop- 
erty to  the  domain  of  private  ownership  by  reducing  them  to  pos- 
session. In  the  case  of  natural  gas  and  oil  no  such  right  exists 
in  the  public.  It  is  vested  only  in  the  owners  in  fee  of  the  surface 
of  the  earth  within  the  area  of  the  gas  field.  This  difference  points 
at  once  to  the  distinction  between  the  power  which  the  lawmaker 
may  exercise  as  to  the  two.  In  the  one,  as  the  public  are  the 
owners,  every  one  may  be  absolutely  prevented  from  seeking  to 
reduce  to  possession.  No  devesting  of  private  property  under  such 
a  condition  can  be  conceived,  because  the  public  are  the  owners. 
*  *  *  On  the  other  hand,  as  to  gas  and  oil  the  surface  proprie- 
tors within  the  gas  field  all  have  the  right  to  reduce  to  possession 
the  gas  and  oil  beneath.  They  could  not  be  absolutely  deprived 
of  this  right  which  belongs  to  them  without  a  taking  of  private 
property.  But  there  is  a  coequal  right  in  them  all  to  take  from 
a  comjuon  source  of  supply  the  two  substances  which  in  the  nature 
of  things  are  united,  though  separate.  It  follows  from  the  essence 
of  their  right  and  from  the  situation  of  the  things  as  to  which 
it  can  be  exerted,  that  the  use  by  one  of  his  power  to  seek  to  con- 
vert a  part  of  the  common  fund  to  actual  possession  may  result 
in  an  undue  proportion  being  attributed  to  one  of  the  possessors 
of  the  right  to  the  detriment  of  the  others,  or  by  waste  by  one  or 
more  to  the  annihilation  of  the  rights  of  the  remainder.  Hence 
it  is  that  the  legislative  power,  from  the  peculiar  nature  of  the 
right  and  the  objects  upon  which  it  is  to  be  exerted,  can  be  mani- 


Limitations  on  and  Interests  in  Property  273 

fested  for  the  purpose  of  protecting  all  the  collective  owners,  by 
securing  a  just  distribution,  to  arise  from  the  enjoyment,  by  them,  of 
their  privilege  to  reduce  to  possession,  and  to  reach  the  like  end  by 
preventing  waste.  *  *  *  Viewed,  then,  as  a  statute  to  protect 
or  to  prevent  the  waste  of  the  common  property  of  the  surface 
owners,  the  law  of  the  state  of  Indiana  which  is  here  attacked 
because  it  is  asserted  that  it  devested  private  property  without 
due  compensation,  in  substance,  is  a  statute  protecting  private 
property  and  preventing  it  from  being  taken  by  one  of  the  com- 
mon owners  without  regard  to  the  enjoyment  of  the  others.  *  *  * 
In  view  of  the  fact  that  regulations  of  natural  deposits  of  oil 
and  gas  and  the  right  of  the  owner  to  take  them  as  an  incident  of 
title  in  fee  to  the  surface  of  the  earth,  as  said  by  the  supreme  court 
of  Indiana,  is  ultimately  but  a  regulation  of  real  property,  and 
they  must  hence  be  treated  as  relating  to  the  preservation  and 
protection  of  rights  of  an  essentially  local  character.  Considering 
this  fact  and  the  peculiar  situation  of  the  substances,  as  well  as  the 
character  of  the  rights  of  the  surface  owners,  we  eannot  say  that 
the  statute  amounts  to  a  taking  of  private  property,  when  it  is  but 
a  regulation  by  the  state  of  Indiana  of  a  subject  which  especially 
comes  within  its  lawful  authority. 


Tenancy  in  Common. 

GUSHING  et  al.  v.  BREED  et  al. 

96  Mass.  376,  92  Am.  Bee.  777.    1867. 

Action  to  recover  the  price  of  five  hundred  bushels  of  oats. 

[The  facts  appear  to  be  that  the  plaintiffs  owned  a  cargo  of 
oats,  containing  6,695  bushels,  which  they  stored  in  an  elevator 
owned  and  operated  by  the  Merchants'  Grain  Elevator  of  Boston. 
The  plaintiffs  thereafter  agreed  to  sell  to  the  defendants  500 
])ushels  of  the  grain  thus  stored,  at  ninety-one  cents  a  bushel,  and 
to  that  purpose,  gave  to  the  defendants  an  order  upon  the  elevator 
company  which  read  as  follows:  ''Please  deliver  Breed  &  Co.  or 
order  five  hundred  bushels  black  oats  from  cargo  per  schooner 
Seven  Brothers,  storage  commencing,  to  the  person  or  persons  in 

10  See  Chilfls'  Personal  Property,  g  113. 
C.P.P.— 18 


274  Cases  on  Personal  Property 

whose  favor  this  order  is  drawn,  June  29,  1864,"  The  order  was 
presented  to  the  elevator  company  and  was  accepted  and  duly 
entered  in  their  books.  The  elevator  company  at  once  delivered 
to  the  defendants  one  hundred  and  five  bushels  of  the  oats.  Shortly 
after,  and  before  the  remaining  quantity  of  oats  was  delivered, 
the  elevator  burned  without  the  fault  of  either  plaintiffs  or  defend- 
ants. The  court  found  that  the  plaintiffs  were  entitled  to  recover 
only  for  the  value  of  the  one  hundred  and  five  bushels,  where- 
upon the  plaintiffs  appealed,] 

Chapman,  J. — The  use  of  elevators  for  the  storage  of  grain 
has  introduced  some  new  methods  of  dealing,  but  the  rights  of 
parties  who  adopt  these  methods  must  be  determined  by  the  prin- 
ciples of  the  common  law.  The  proprietors  of  the  elevator  are  the 
agents  of  the  various  parties  for  whom  they  act.  When  several 
parties  have  stored  various  parcels  of  grain  in  the  elevator,  and 
it  is  put  into  one  mass,  according  to  a  usage  to  which  they  must 
be  deemed  to  have  assented,  they  are  tenants  in  common  of  the 
grain.  Each  is  entitled  to  such  a  proportion  as  the  quantity  placed 
there  by  him  bears  to  the  whole  mass.  When  one  of  them  sells 
a  certain  number  of  bushels,  it  is  a  sale  of  property  owned  by 
him  in  common.  It  is  not  necessary  to  take  it  away  in  order  to 
complete  the  purchase.  If  the  vendor  gives  an  order  on  the  agents 
to  deliver  it  to  the  vendee,  and  the  agents  accept  the  order,  and 
agree  with  the  vendee  to  store  the  property  for  him,  and  give  him 
a  receipt  therefor,  the  delivery  is  thereby  complete,  and  the  prop- 
erty belongs  to  the  vendee.  The  vendor  has  nothing  more  to  do 
to  complete  the  sale,  nor  has  he  any  further  dominion  over  the 
property.  The  agent  holds  it  as  the  property  of  the  vendee,  owned 
by  him  in  common  with  the  other  grain  in  the  elevator.  It  is 
elementary  law  that  a  tenant  in  common  of  personal  property  in-^^ 
the  hands  of  an  agent  may  sell  the  whole  or  any  part  of  his  interest 
in  the  property,  by  the  method  above  stated,  or  by  any  other  method 
equivalent  to  it.  Actual  separation  and  taking  away  are  not  neces- 
sary to  complete  the  sale.  As  to  the  property  sold,  the  agent  acts 
for  a  new  principal,  and  holds  his  property  for  him.  The  law  is 
the  same,  whether  the  proprietors  are  numerous  or  the  vendor  and 
vendee  are  owners  of  the  whole.  If  the  vendee  resells  the  whole 
or  a  part  of  what  he  has  purchased,  his  vendee  may,  by  the  same 
course  of  dealing,  become  also  a  tenant  in  common  as  to  the  part 
which  he  has  bought. 

This  is  not  like  the  class  of  sales  where  the  vendor  retains  the 


Limitations  on  and  Interests  in  Property  275 

possession,  because  there  is  something  further  for  him  to  do,  such 
as  measuring,  or  weighing,  or  marking,  as  in  Scudder  v.  Worster, 
11  Cush.  573;  nor  like  the  case  of  AYeld  v.  Cutler,  2  Gray  195, 
where  the  whole  of  a  pile  of  coal  was  delivered  to  the  vendee  in 
order  that  he  might  make  the  separation.  But  the  property  is  in 
the  hands  of  an  agent;  and  the  same  person  who  was  the  agent 
of  the  vendor  to  keep,  becomes  the  agent  of  the  vendee  to  keep; 
and  the  possession  of  the  agent  becomes  the  possession  of  the  prin- 
cipal. Hatch  V.  Ba^^ley,  12  Cush.  27,  and  cases  cited.  The  tenancy 
in  common  rasults  from  the  method  of  storage  which  has  been 
agreed  upon,  and  supersedes  the  necessity  of  measuring,  weigh- 
ing, or  separating  the  part  sold. 

No  delivery  is  necessary  to  a  tenant  in  common.  Beaumont  v. 
Crane,  14  Mass.  400. 

Upon  these  principles,  the  plaintiffs  are  entitled  to  recover  the 
amount  due  them  for  the  property  thus  sold  and  delivered  to  the 
defendants.  The  damage  occasioned  to  this  property  by  the  fire 
must  be  borne  by  the  defendants,  as  owners  of  the  property. 

Exceptions  sustained}'^ 


1 


Joint  Tenancy. 
WAIT  V.  BOVEE. 
35  Mich.  425.    1877. 
The  facts  are  stated  in  the  opinion. 

Graves,  J. — This  controversy  is  between  the  estate  of  the  husband 
on  the  one  hand  and  that  of  the  wife  on  the  other,  and  it  presents  a 
single  question. 

At  the  time  of  their  intermarriage  the  decedents  were  respectively 
possessed  of  about  two  thousand  eight  hundred  dollars,  and  each 
had  children  by  a  former  marriage. 

Their  marriage  occurred  in  1852,  and  each  thereafter  recognized 
the  separate  property  rights  of  the  other.  Thoy  made  investments 
jointly,  each  supplying  half  of  the  means,  and  they  took  all  securi- 
ties in  their  .joint  names.  This  course  continued  until  March, 
1873,  when   the  husband  died.     At   this  time  the  personalty  so 

"See  Cliilds'  Personal  Property,  §132. 


276  Cases  on  Person.u^  Property 

handled  and  situated  had  swelled  to  a  considerable  amount.  No 
question  is  involved  concerning  right  to  real  estate,  or  any  ques- 
tion concerning  the  rights  of  creditors.  The  point  is  confined  to 
the  right  to  this  personalty  as  between  the  two  estates,  the  wife 
also  being  now  deceased.  On  the  part  of  her  estate  it  was  claimed 
below  and  is  here,  that  in  regard  to  these  securities  taken  in  the 
joint  names,  the  old  law  of  survivorship  governs,  and  that  as  she 
outlived  her  husband  she  took  the  whole. 

On  the  other  side  it  is  urged  that  no  such  rule  now  prevails  in 
this  state,  whatever  may  have  been  the  ease  formerly,  and  that 
the  law  now  recognizes  and  protects  the  property  interests  of 
husband  and  wife  in  joint  securities  as  separate  and  distinct  inter- 
ests when  particular  circumstances  do  not  exist  to  show  a  con- 
trary intention  in  the  parties. 

The  judge  of  probate  ruled  against  the  right  of  survivorship 
claimed  on  behalf  of  the  wife,  and  his  order  was  appealed  from 
to  the  circuit  court.  That  portion  of  his  order  which  so  decreed 
was  there  reversed,  and  it  was  decided  that  by  force  of  the  law 
of  survivorship  the  wife  took  the  whole.  The  conclusion  of  the 
probate  court  was  correct,  and  that  of  the  circuit  court  was  errone- 
ous. As  the  case  stood,  the  question  was  upon  the  bare  legal  effect 
of  the  husband's  death  in  the  lifetime  of  the  wife  upon  the  right 
to  the  securities  taken  by  them  jointly.  Our  own  decisions  rela- 
tive to  the  rights  of  husband  and  wife  in  case  of  united  holdings 
of  real  estate,  afford  no  argument  here.  They  were  grounded 
upon  the  statutory  preservation  of  the  common-law  doctrine, 
which  originated  in  and  was  developed  by  a  policy  not  pertinent 
to  cases  of  taking  and  holding  of  personal  securities.  There  is 
no  question  on  evidence  as  to  whether  there  was  a  gift  by  the 
husband  to  the  wife,  or  a  contingent  relinquishment  of  right  by 
one  to  the  other ;  the  case  fairly  excludes  all  considerations  of  that 
kind.  Prior  to  the  husband 's  death  each  held  an  individual  divisible 
interest.  As  between  the  two  and  before  the  husband's  death,  the 
law  would  have  considered  that  each  owned  an  equal  half,  and 
not  that  their  respective  interests  were  consolidated  into  an  entirety 
held  by  the  two  as  one  person.  By  the  law  of  1846,  which  was 
a  re-enactment  with  some  change  of  the  law  of  1844,  the  estate 
Mrs.  "Wait  owned  on  her  marriage  with  decedent  Justin  Wait,  was 
kept  and  preserved  to  her  as  her  separate  property  after  the  mar- 
riage to  the  "sam'e  extent  as  before  marriage." — Sess.  L.  1844, 
p.  77-78;  R.  S.  1846,  p.  340,  §25.  Hence,  during  the  husband's 
lifetime,  and  up  to  the  act  of  1855,  the  marriage  and  taking  the 


Limitations  on  and  Interests  in  Property  277 

securities  in  the  joint  names  had  not  the  effect  as  matter  of  law 
to  blend  the  respective  interests  and  consolidate  them  into  one. 

The  preservation  of  the  property  interest  of  the  wife  as  some- 
thing distinct  and  separate  is  repugnant  to  such  a  blending,  and 
inconsistent  with  the  common-law  doctrine  advanced. 

The  act  of  1855,  which  was  passed  some  three  years  after  the 
marriage,  goes  further  than  the  earlier  ones  in  the  same  direction.^ — 
2  C.  L.,  pp.  1477,  1478. 

She  held  her  property  interest  as  though  she  were  sole,  and 
the  bare  fact  that  the  securities  were  taken  in  the  joint  names, 
could  no  more  change  the  holding  into  one  by  entirety  than  it 
would  if  the  parties  had  not  been  married^  Indeed  the  tenure  was 
just  what  it  would  have  been  if  the  parties  had  been  unmarried. 

Her  right  was  separate  and  distinguishable  up  to  her  husband's 
death,  and  under  the  impress  of  the  statute  it  continued  so,  and 
his  right  was  therefore  necessarily  separate  and  disguishable  from 
liers,  and  so  continued. 

There  could  be  no  blending  so  long  as  the  law  kept  her  right 
distinct. 

The  drift  of  policy  and  opinion,  as  shown  by  legislation  and 
judicial  decisions,  is  strongly  adverse  to  the  doctrine  of  taking 
by  mere  right  of  survivorship,  except  in  a  few  special  cases,  and 
it  should  not  be  applied  except  where  the  law  in  its  favor  is 
clear. 

There  must  be  a  reversal  of  the  order  of  the  circuit  court  and 
an  affirmance  of  the  order  of  the  probate  court. 

The  plaintiffs  in  error  will  recover  their  costs  of  this  court  and 
of  the  circuit  court. 

The  other  justices  concurred.^^ 


WHITEHEAD  v.  SMITH. 
19  E.  I.  135,  32  Atl.  168.    1895. 
The  facts  are  stated  in  the  opinion. 

Tillinghast,  J. — The  agreed  statement  of  facts  in  this  ease 
shows  that  the  deposits  in  the  Peoples  Savings  Bank  and  the  Indus- 
trial Trust  Company,  both  of  Providence,  the  ownership  of  which 

12  See  Childs'  Personal  Property,  §135. 


278  Cases  on  Personal  Property 

deposits  is  brought  in  question,  were  made  by  James  "Whitehead, 
the  deceased,  to  the  account  of  James  Whitehead  or  Martha  A. 
Smith  (his  daughter),  and  were  payable  to  either  or  the  survivor 
of  them;  that  said  James  Whitehead  deceased  April  6,  1893,  at 
East  Providence  in  this  State,  leaving  a  widow  and  two  children, 
and  that  there  was  remaining  in  said  Peoples  Savings  Bank  to 
the  credit  of  said  account  at  that  time,  the  sum  of  $665.86,  and 
in  said  Industrial  Trust  Company  to  the  credit  of  said  account, 
the  sum  of  $703.58,  which  said  sums  were  subsequently  withdrawn 
by  and  appropriated  to  the  use  of  said  Martha  A.  Smith,  she  claim- 
ing the  right  so  to  do  as  the  survivor  of  James  Whitehead.  And 
the  only  question  raised  by  the  appellant  is  as  to  the  ownership  of 
said  deposits,  he  claiming  that  they  belonged  to  said  James  White- 
head at  the  time  of  his  death,  and  hence  should  now  be  held  and 
accounted  for  as  property  belonging  to  the  estate,  by  the  adminis- 
tratrix, while  said  Martha  claims  that  the  same,  upon  the  death 
of  James  Whitehead  belonged  to  her  as  aforesaid.  We  think  it 
is  clear  that  said  deposits  were  the  joint  property  of  said  James 
Whitehead  and  Martha  A.  Smith  during  their  joint  lives,  and  that 
upon  the  death  of  James  Whitehead  the  title  thereto  vested  imme- 
diately and  absolutely  in  the  survivor,  Mrs.  Smith.  Mack  v. 
Mechanics  &  Farmers'  Savings  Bank,  50  Hun.  477.  And  this 
being  so  she  was  not  called  upon  to  account  for  said  deposits  as 
administratrix.  The  case  is  clearly  distinguishable  from  that  of 
the  Providence  Institution  for  Savings  v.  Carpenter,  18  R.  I.  287, 
relied  on  by  counsel  for  appellant.  In  that  case  the  understanding 
was  that  the  money  was  to  remain  the  property  of  the  depositor 
during  her  life  subject  to  her  own  control,  and  at  her  death  to 
be  the  property  of  Miss  Carpenter  for  the  purpose  of  applying 
it  to  certain  specified  religious  and  charitable  uses.  So  that  in  that 
case  under  the  proof  submitted  there  was  no  joint  estate,  but  simply 
a  deposit  which,  while  it  stood  to  the  credit  of  "Margaret  Hart 
or  Mary  F.  Cai-penter"  on  the  books  of  the  bank,  belonged  solely 
to  said  Margaret  and  was  so  to  continue  during  her  life.  In  short 
the  proof  in  that  case  showed  that  said  Margaret  attempted  by 
means  of  the  deposit  and  the  agreement  or  understanding  with 
Mrs.  Carpenter  relative  thereto  to  make  a  purely  testamentary 
disposition  of  said  fund.  The  case,  therefore,  has  no  bearing  upon 
the  one  now  before  us.  In  this  case  the  deposits  not  only  stood 
on  the  books  of  the  bank  to  the  credit  of  James  Whitehead  or 
Martha  A.  Smith  or  the  survivor  of  them,  but  the  uncontradicted 
testimony  of  Mrs.  Smith  which  is  made  a  part  of  the  agreed  state- 


Limitations  on  and  Interests  in  Property  279 

ment  of  facts  shows  that  said  James  "Whitehead  intended  that 
the  deposits  should  become  and  remain  the  joint  property  of  him- 
self and  his  said  daughter  during  their  joint  lives,  and  in  case  she 
survived  him,  that  whatever  remained  thereof  should  belong  to  her, 
A  decree  may  be  entered  confirming  the  decree  of  the  Probate 
Court  in  the  premises,  but  by  virtue  of  the  agreement  of  the  parties, 
without  cost  to  either  party.  ^^ 

13  See  Childs'  Personal  Property,  §135. 


Spt 


0/ 


^d 


CHAPTER  VII. 
HOW  PROPERTY  COMES  INTO  EXISTENCE. 

Severance. 

KELLY  V.  OHIO  OIL  CO. 

57  Ohio  St.  317,  49  N.  E.  399.     1897. 

[The  plaintiff,  Thomas  C.  Kelly,  brought  action  against  the 
defendant  Oil  Co.  to  restrain  said  company  from  operating  certain 
oil  wells,  and  to  account  to  the  plaintiff  for  the  oil  so  taken.  Judg- 
ment for  defendant  and  plaintiff  appealed. 

The  plaintiff  was  lessee  of  oil  lands  adjoining  lands  of  the  defend- 
ant Oil  Co.  The  defendant  company  drilled  wells  close  to  and 
along  the  line  of  the  plaintiff's  land,  thereby  draining  the  plain- 
tiff's land,  as  he  alleged,  of  the  oil  in  and  under  said  land.  The 
plaintiff  further  alleged  that  it  was  practically  a  universal  custom 
of  oil  operators  to  locate  their  wells  at  least  200  feet  from  the  boun- 
dary line  of  adjoining  lands.] 

BuRKET,  C.  J. — The  question  is  not  as  to  the  motive — fraud  or 
malice-rwhich  may  have  induced  the  oil  company  to  drill  the  wells 
sought  to  be  enjoined.  The  only  question  of  practical  importance  is, 
had  the  oil  company  the  legal  right  to  drill  the  wells  ?  When  a  per- 
son has  the  legal  right  to  do  a  certain  act,  the  motive  with  which  it 
is  done  is  immaterial.  The  right  to  acquire,  enjoy,  and  own  prop- 
erty carries  with  it  the  right  to  use  it  as  the  owner  pleases,  so  long 
as  such  use  does  not  interfere  with  the  legal  rights  of  others.  To 
drill  an  oil  well  near  the  line  of  one's  land  cannot  interfere  with 
the  legal  rights  of  the  o^raer  of  the  adjoining  lands,  so  long  as 
aU  operations  are  confined  to  the  lands  upon  which  the  well  is 
drilled.  Whatever  gets  into  the  well  belongs  to  the  owner  oi 
the  well,  no  matter  where  it  came  from.  In  such  ca-ses  the  well 
and  its  contents  belong  to  the  owner  or  lessee  of  the  land,  and  no 
one  can  tell  to  a  certainty  from  whence  the  oil,  gas,  or  water  which 

280 


How  Property  Comes  Into  Existence  281 

enters  the  well  came,  and  no  legal  right  as  to  the  same  can  be 
established  or  enforced  by  an  adjoining  landowner.  The  right 
to  drill  and  produce  oil  on  one's  own  land  is  absolute,  and  cannot 
be  supervised  or  controlled  by  a  court  or  an  adjoining  landowner. 
So  long  as  the  operations  are  legal,  their  reasonableness  cannot 
be  drawn  in  question.  As  was  pointed  out  in  Letts  v.  Kessler,  54 
Ohio  St.  73,  42  N.  E.  765,  it  is  intolerable  that  the  owner  of  real 
property,  before  making  improvements  on  his  own  lands,  should 
be  compelled  to  submit  to  what  his  neighbor  or  a  court  of  equity 
might  regard  as  a  reasonable  use  of  his  property.  Petroleum  oil 
is  a  mineral,  and  while  in  the  earth  it  is  part  of  the  realty,  and, 
should  it  move  from  place  to  place  by  percolation  or  otherwise, 
it  forms  part  of  that  tract  of  land  in  which  it  tarries  for  the  time 
being,  and,  if  it  moves  to  the  next  adjoining  tract,  it  becomes  part 
and  parcel  of  that  tract;  and  it  forms  part  of  some  tract  until 
it  reaches  a  well,  and  is  raised  to  the  surface,  and  then  for  the 
first  time  it  becomes  the  subject  of  distinct  ownership-,  separate 
from  the  realty,  and  becomes  personal  property, — the  property 
of  the  person  into  whose  well  it  came.  And  this  is  so  whether  the 
oil  moves,  percolates,  or  exists  in  pools  or  deposits.  In  either 
event,  it  is  the  property  of,  and  belongs  to,  the  person  who  reaches 
it  by  means  of  a  well,  and  severs  it  from  the  realty,  and  converts 
it  into  personalty.  While  it  is  generally  supposed  that  oil  is 
drained  into  wells  for  a  distance  of  several  hundred  feet,  the  mat- 
ter is  somewhat  uncertain,  and  no  right  of  sufficient  weight  can 
be  founded  upon  such  uncertain  supposition  to  overcome  the  well- 
known  right  which  every  man  has  to  use  his  property  as  he  pleases, 
so  long  as  he  does  not  interfere  with  the  legal  rights  of  others. 
Protection  of  lines  of  adjoining  lands  by  the  drilling  of  wells  on 
both  sides  of  such  lines  affords  an  ample  and  sufficient  remedy  for 
the  supposed  grievances  complained  of  in  the  petition  and  sup- 
plemental petition,  without  resort  to  either  an  injunction  or  an 
accounting.  The  cases  of  Coal  Co.  v.  Tucker,  48  Ohio  St.  41,  26 
N.  E.  630,  and  Collins  v.  Gas  Co.,  131  Pa.  St.  143,  18  Atl.  1012, 
and  other  like  cases,  in  which  some  harmful  substance  was  sent, 
conveyed,  or  caused  to  go  from  the  premises  of  one  to  the  premises 
of  another,  have  no  application  here,  because  in  this  case  nothing 
reached  the  plaintiff's  lands  from  the  premises  of  the  defendant, 
and  the  only  complaint  is  that  the  oil  company  so  used  its  own 
premises  as  to  secure  and  appropriate  to  its  own  use  that  which 
came  into  its  lands  by  percolation,  or  by  flowing  through  unknown 
natural  underground  channels.    This  it  had  a  right  to  do.    While 


282  Cases  on  Personal  Property 

the  drilled  oil  well  is  artificial,  the  pores  and  channels  through 
which  the  oil  reached  the  bottom  of  the  well  are  natural. 

Judgment  affirmed.'^ 

Accession. 

See  Kellogg  v.  Lovely,  p.  244;  Demers  v.  Graham,  p.  247;  Holt  v.  Lucas,  p 
252;   Ayre  v.  Hixson,  p.  289. 


Occupancy. 
MATHER  et  al.  v.  CHAPMAN. 

40  Comi.  382,  16  Am.  Rep.  46.    1873. 
The  facts  are  stated  in  the  opinion. 

Seymour,  C.  J. — The  first  count  of  the  plaintiffs'  declaration 
is  in  trespass  for  the  taking  and  converting  to  his  own  use  by  the 
defendant  of  large  quantities  of  sea-weed  alleged  to  be  the  proper 
goods  and  estate  of  the  plaintiffs.  This  sea-weed  was  cast  upon 
the  shore  adjoining  the  defendant's  land,  and  was  there,  below 
high-water  mark,  taken  by  the  defendant  and  converted  to  his 
own  use.  The  Court  of  Common  Pleas,  against  the  request  of 
the  plaintiffs,  instructed  the  jury,  in  substance,  that  sea-weed  cast 
and  left  upon  the  shore  (that  is,  between  ordinary  high  and  low- 
water  mark),  prima  facie  belongs  to  the  public  and  may  lawfully 
be  appropriated  by  the  first  occupant. 

To  this  charge  the  plaintiffs  object,  and  the  principal  question 
in  the  case  arises  upon  this  objection. 

A  different  question  arises  under  the  second  count,  which  will 
be  considered  in  its  proper  place. 

It  is  conceded  that  by  the  settled  law  of  Connecticut  the  title 
of  a  riparian  proprietor  terminates  at  ordinary  high-water  mark. 
It  is  also  conceded  that  though  his  title  in  fee  thus  terminates,  yet 
he  has  certain  privileges  in  the  adjoining  waters. 

Among  the  most  important  of  these  privileges  are:  (1)  That 
of  access  to  the  deep  sea.  (2)  The  right  to  extend  his  lands  into 
the  water  by  means  of  wharves,  subject  to  the  qualification  that 
he  thereby  does  no  injury  to  the  free  navigation  of  the  water  by 

iSee  Childs'  Personal  Property,  §§140,  14L 


How  Property  Comes  Into  Existence  283 

the  public.  (3)  The  right  by  accretion  to  whatever  lands  by  nat- 
ural or  artificial  means  are  reclaimed  from  the  sea,  subject  how- 
ever to  certain  qualifications  not  necessary  here  to  be  mentioned. 

The  plaintiffs  claim  that  among  the  privileges  of  the  riparian 
proprietor  is  also  that  of  the  exclusive  right  to  the  sea-weed  which 
is  cast  upon  the  shore  and  left  there  by  the  receding  tide. 

In  respect  to  the  weed  cast  by  extraordinary  floods  upon  the 
land  of  the  proprietor  and  there  left  above  ordinary  high-water 
mark,  the  law  of  this  state  is  settled,  in  conformity  with  what 
we  understand  to  be  the  common  law  of  England.  The  owner 
of  the  soil  has  it  ratione  soli.  No  other  person  can  then  take  it 
without  a  trespass  upon  the  owner's  land,  and  as  owner  of  the 
land  he  is  deemed  to  be  constructively  the  first  occupant. 

But  below  high-water  mark  the  soil  does  not  belong  to  the  owner 
of  the  upland.  The  sea-weed  in  dispute  was  not  taken  from  the 
plaintiffs'  land,  and  their  title,  if  they  have  a  title,  is  not  ratione 
soli.  No  trespass  on  the  plaintiffs'  land  was  committed  by  the 
defendant  in  taking  the  weed,  for  the  taking  of  which  recovery 
is  sought  in  this  count. 

Upon  what  ground  then  can  the  plaintiffs  sustain  the  title 
which  they  claim  to  the  weed?  "While  it  was  floating  on  the  tide 
it  was  publici  juris.  Why,  when  it  is  left  on  the  shore  by  the 
receding  tide,  should  it  become  their  property? 

In  ]\rassachusetts  and  Maine,  by  virtue  of  the  Colonial  Ordinance 
of  1641,  the  individual  title  of  proprietors  adjoining  navigable 
water  extends  to  low-water  mark.  Sea-weed  left  by  the  receding 
tides  being  then  on  private  property,  the  owner  of  the  soil  has 
title  ratione  soli,  not  only  to  sea-weed  but  to  other  articles  cast 
upon  and  left  on  the  shore.  Thus  in  Barker  v.  Bates,  13  Pick.  255, 
a  stick  of  timber  was  thrown  up  and  had  lodged  on  the  shore  within 
the  old  colony  of  Plymouth.  The  question  is  largely  discussed 
by  Shaw,  Ch.  J.  The  learned  judge  proceeds  to  say:  ''Consid- 
ering it  as  thus  established  that  the  place  upon  which  this  timber 
w^as  thrown  and  had  lodged  was  the  soil  and  freehold  of  the 
plaintiff,  the  defendants  cannot  justify  their  entry  for  the  purpose 
of  taking  away  or  marking  the  timber.  We  are  of  opinion  that 
such  entry  was  a  trespass,  and  that,  as  between  the  plaintiff  and 
defendant,  the  plaintiff  had  in  virtue  of  his  title  to  the  soil  the 
preferable  right  of  possession,  and  that  the  plaintiff  has  a  right 
to  recover  the  agreed  value  of  the  timber." 

The  cases  therefore  in  Massachu.setts  and  Maine  which  decide 
that  sea-weed  left  on  the  shore  belongs  to  the  riparian  proprietor 


284  Cases  on  Personal  Property 

have  no  application  here.     In  New  Hampshire  the  Massachusetts 
ordinance  is  adopted  as  law. 

In  New  York  the  common  law  rule  is  adopted,  as  with  us,  in 
relation  to  the  boundary  line  between  the  public  and  the  riparian 
proprietor,  and  it  is  claimed  that  in  Emans  v.  Turnbull,  2  Johns. 
R.  313,  the  question  before  us  is  decided  in  conformity  with  the 
plaintiff's  claim.  The  judgment  in  that  case  is  pronounced  by  a 
judge  of  profound  learning,  whose  opinion  upon  the  point  now 
under  discussion,  if  really  given,  would  be  entitled  to  great  weight ; 
but  we  are  inclined  to  think  that  the  sea-weed  in  that  case  was 
cast  upon  the  land  of  the  plaintiff.  The  main  argument  at  the 
bar  and  on  the  bench  relates  to  the  title  to  the  locus  in  quo.  Chief 
Justice  Kent  says: — "If  the  marine  increase  be  by  small  and 
imperceptible  degrees,  it  goes  to  the  owner  of  the  land.  The  sea- 
weed must  be  supposed  to  have  accumulated  gradually." 

In  the  case  we  are  called  on  to  decide  the  sea-weed  could  not 
be  regarded  as  a  marine  increase  of  the  plaintiffs'  land,  for  it 
had  not  reached  their  land  and  was  not  attached  to  it  nor  part 
and  parcel  of  the  land  itself.  Being  between  high  and  low-water 
mark,  at  each  returning  tide  it  would  be  afloat,  and  even  in  Massa- 
chusetts sea-weed  when  afloat  is  puhlici  juris,  although  floating 
over  soil  which  is  private  property. 

The  sea-weed  in  this  suit  is  not  treated  as  part  of  the  real  estate 
which  by  small  and  imperceptible  degrees  had  become  part  of  the 
plaintiffs'  land.  It  is  treated  as  personal  property,  and  the  defend- 
ant is  sued  for  taking  it  as  such  and  converting  it  to  his  own  use. 
In  the  case  of  Emans  v.  Turnbull  the  plaintiff's  title  was  held 
good  upon  a  liberal  construction  of  the  jus  alluvionis,  which  im- 
plies that  the  weed  had  then  become  part  and  parcel  of  the  plaintiff's 
land  and  must  therefore  have  been  above  or  upon  ordinary  high- 
water  mark.  Title  to  personal  property  jure  alluvionis  would 
be  a  novelty  in  the  law.  2  Black.  Com.  262.  Title  by  accretion 
is  substantially  the  same  as  by  alluvion.  Both  are  modes  of  acquir- 
ing title  to  real  property. 

Title  however  to  personal  property  may  be  acquired  by  what 
in  law  is  called  accession,  but  to  acquire  title  by  accession  the 
accessory  thing  must  be  united  to  the  principal,  so  as  to  constitute 
part  and  parcel  of  it.  "Accessio"  is  defined  by  Bouvier  as  "a 
manner  of  acquiring  the  property  in  a  thing  which  becomes  united 
with  that  which  a  person  already  possesses."  The  plaintift^s  there- 
fore seem  to  us  to  have  no  title  by  alluvion,  or  by  accretion,  or  by 


How  Property  Comes  Into  Existence  285 

accession,  certainly  none  ratione  soli,  and  they  cannot  be  regarded 
as  first  occupants  by  constiniction  merely  because  of  the  propin- 
quity of  their  land  to  the  property  in  dispute. 

The  question  under  discussion  does  not  seem  to  be  fully  settled 
in  England.  The  soil  of  the  sea-shore  is  there,  as  with  us,  prima 
facie  in  the  public,  but  it  may  become  private  property,  and  fre- 
quently is  so,  where  the  adjoining  lands  are  part  of  the  manor. 
The  authority  of  Bracton  is  clearly  in  favor:  (1)  of  the  common 
right  of  all  to  the  shores  of  the  sea  as  part  of  the  sea  itself.  (2) 
In  Liber  2,  speaking  of  the  right  of  first  occupancy,  he  says,  "It^m, 
locum  Jiabet  eadem  species  occupationis  in  iis  quae  communia  sunt, 
siciit  in  mare  et  littore  'maris,  in  lappillis  et  geminis  et  ceteris  in 
littore  maris  invent  is."  Sea- weed  must  be  included  within  the 
et  ceteris  of  Bracton  in  this  passage,  and  upon  his  authority  belongs 
to  the  first  occupant. 

The  opinion  of  Lord  Hale  in  favor  of  the  common  right  to  take 
sea-weed  on  the  shore  is  shown  by  the  following  passage  in  Chap- 
ter 6  of  Hale  de  Jure  ]\Iaris.  After  speaking  of  tliree  kinds  of 
shore  he  says,  ''This  kind  of  shore,  to-wit,  that  which  is  covered 
by  the  ordinary  flux  of  the  ocean,  may  belong  to  a  subject,  and 
may  be  parcel  of  a  manor,  and  the  evidences  to  prove  it  parcel 
of  a  manor  are  commonly  these,  constant  and  usual  fetching  of 
gravel  and  sea-weed  and  sea-sand,  between  high  and  low-water 
mark,  and  licensing  others  so  to  do."     *     *     * 

The  case  of  Church  v.  Meeker,  34  Conn.  R.  421,  is  relied  upon 
by  both  parties.  We  think  the  opinion  of  Judge  Butler  in  that 
case  must  be  construed  as  applicable  solely  to  sea-weed  found  as 
it  there  was  above  high-water  mark. 

In  the  case  of  Peck  v.  Lockwoood,  5  Day  22,  the  plaintiff  owned 
a  portion  of  the  shore  below  ordinary  high-water  mark,  and  it 
was  held  that  he  could  not  maintain  the  trespass  against  the 
defendant,  who  entered  the  premises  when  the  tide  was  out  and 
dug  for  shell  fish  and  carried  the  fish  away.  That  is  a  strong 
case  in  favor  of  the  common  right  of  fishing. 

But  the  right  of  taking  sea-weed  would  seem  to  stand  on  the 
same  ground  as  the  right  of  taking  fish.  We  see  no  reason  for 
making  a  distinction  between  the  vegetable  and  animal  products 
of  the  ocean.  Neither  in  the  state  of  nature  is  the  property  of 
any  one;  the  title  to  both  depends  upon  the  first  occupancy.  It 
is  agreed  that  while  afloat  both  are  alike  common ;  why,  when  the 
tide  recedes  and  leaves  shell-fish  and  sea-weed  on  the  shore,  should 


286  Cases  on  Personal  Property 

the  sea-weed  belong  to  the  riparian  proprietor  when  confessedly 
the  shell-fish  remains  common  property. 

We  think  the  charge  of  the  judge  in  regard  to  the  first  count 
was  correct; 

(Judgment  reversed  on  another  ground.)  ^ 

2  See  Childs '  Personal  Property,  §  144. 


CHAPTER  Vin. 
TRANSFER  OF  PROPERTY  BY  ACT  OF  THE  PARTIES. 

Chattel  ]\Iortgage. 

Definition,  Nature  of. 

HANNAH  &  HOGG  v.  RICHTER  BREWING  CO.  et  al. 

149  Mich.  220,  112  N.  W.  713, 119  Am.  St.  674,  12  L.  R.  A.  (N.  8.) 

178.     1907. 

The  facts  are  stated  in  the  opinion. 

McAlvay,  C.  J. — But  one  question  is  involved  in  this  appeal, 
and  that  is  whether  the  giving  of  a  chattel  mortgage  is  a  sale,  trans- 
fer, or  assignment,  in  hulk,  within  the  meaning  of  Act  No.  223, 
p.  322,  Pub.  Acts  1905,  entitled  "An  act  to  regulate  the  sales, 
transfers  and  assignments  of  stocks  of  goods,  merchandise  and 
fixtures  in  bulk."  Defendant  Oliver  Hotel  Company,  in  con- 
nection with  its  business  conducted  a  bar  where  liquors  were  sold. 
On  February  21,  1906,  it  gave  defendant  Richter  Brewing  Com- 
pany a  chattel  mortgage  upon  the  entire  bar  fixtures  pertaining 
to  its  liquor  business,  and  afterwards  made  a  sale  in  bulk  of  the 
same  property  to  the  other  defendants.  The  hotel  company  was, 
before  giving  his  chattel  mortgage,  indebted  to  complainant, 
which,  on  May  29,  1906,  put  its  claim  into  judgment  for  $273 
damages  and  $2.95  costs  of  suit.  On  June  5,  1906,  an  execution 
i.ssued  and  a  le\'y  was  made  upon  this  property,  and  demand  was 
made  of  defendants  to  tuni  the  same  over  to  compLiinant  and 
release  all  claim  of  ownership  or  title  thereto.  This  demand  was 
refused,  and  the  bill  of  complaint  in  this  case  was  filed,  upon 
the  theory  that  the  disposition  of  this  property  was  within  the 
prohibition  of  the  statute  invoked,  and  complainant  asked  the 
court  to  declare  the  instruments  void  for  that  reason,  and  prayed 
for  other  relief.  Defendant  Richter  Brewing  Company  demurred, 
raising  the  question  involved.     The  demurrer  was  sustained,  and 

287 


288  Cases  on  Personal  Property 

a  decree  entered  dismissing  the  bill  of  complaint  as  to  demurring 
defendant. 

So  much  of  this  statute  as  is  now  necessary  to  quote  provides: 
"The  sale,  transfer  or  assignment,  in  bulk,  of  any  part  or  the 
whole  of  a  stock  of  merchandise,  or  merchandise  and  the  fixtures 
pertaining  to  the  conducting  of  said  business,  otherwise  than  in 
the  ordinary  course  of  trade,  and  in  the  regular  and  usual  prose- 
cution of  the  business  of  the  seller,  transferrer  or  assignor,  shall 
be  void  as  against  the  creditors  of  the  seller,  transferrer  or  assignor, 
unless"  etc.,  giving  the  notice  and  proceedings  necessary  in  order 
to  make  the  transaction  valid.  While  many  of  the  courts  hold  to 
the  common-law  doctrine  that  a  chattel  mortgage  is  an  instrument 
of  sale  conveying  the  title  cf  the  property,  this  court  has  held 
that  the  true  relation  of  parties  to  a  chattel  mortgage  is  that  of 
debtor  on  one  side  and  creditor  secured  by  lien  on  the  other. 
Lucking  v.  "Wesson,  25  Mich.  443.  And  also  that  the  title  of  a 
mortgagee  of  chattels  does  not  become  absolute  until  foreclosure 
and  sale.  Kohl  v.  Lynn,  34  Mich.  360,  and  cases  cited.  It  is  the 
settled  law  of  this  state  that  a  chattel  mortgage  is  not  an  assign- 
ment. Sheldon  v.  Mann,  85  Mich.  265 ;  48  N.  W.  573 ;  Warner  v. 
Littlefield,  89  Mich.  329,  50  N.  W.  721 ;  Wineman  v.  Fisher,.  118 
Mich.  636,  77  N.  W.  245.  *  *  *  To  hold  a  chattel  mortgage 
within  the  meaning  of  the  statute  it  is  necessary  to  hold  that  it 
is  a  sale  within  the  common  acceptation  of  that  term,  transferring 
the  entire  title,  and  entitling  the  vendee  to  immediate  possession. 
This,  by  the  specific  terms  of  this  mortgage,  which  are  the  same 
as  those  of  chattel  mortgages  generally  in  this  state,  and  under 
our  decisions  above  cited,  cannot  be  done.  The  argument  is  ad- 
vanced that,  having  adopted  this  statute,  the  court  will  follow 
the  construction  given  by  the  courts  of  those  states  from  which 
it  is  taken.  The  custom  referred  to  has  no  binding  force  upon 
the  courts  of  the  adopting  state.  In  the  case  at  bar  the  custom 
cannot  be  followed,  for  the  reason  that  no  construction  has  yet 
been  given  upon  the  point  involved,  and,  if  construction  had  been 
given  favorable  to  complainant,  it  could  not  be  followed  because 
those  states  accept  the  common-law  doctrine  that  a  chattel  mort- 
gage is  an  instrument  of  sale  conveying  the  title  of  the  property, 
which,  as  above  shown,  does  not  prevail  in  this  state. 

We  agree  with  the  learned  circuit  judge  that  chattel  mortgages 
are  not  included  in  the  act. 

The  decree  is  affirmed,  with  costs.^ 

iSee  Childs'  Personal  Propertj,  §195. 


Transfer  of  Property  by  Act  of  the  Parties         289 

AYRE  V.  HIXSOX  et  al. 

53  Oreg.  19,  98  Pac.  515.     1908. 

This  is  an  action  to  foreclose  four  mortgages.  The  facts  perti- 
nent to  the  case  are  as  follows : 

[The  plaintiff  sold  to  the  defendants  some  ewes,  about  530  in 
number,  and  also  loaned  them  $1,572  for  which  they  (the  defend- 
ants) gave  a  promissory  note.  To  secure  the  payment  of  the  loan, 
the  defendants  gave  the  plaintiff  a  mortgage  on  the  sbeep  and 
their  increase,  etc.  The  plaintiff'  also  leased  to  the  defendants  other 
sheep,  taking  as  security  therefor  several  promissory  notes  secured 
by  mortgages  on  the  sheep.  Some  of  these  mortgages  did  not,  in 
terms,  include  the  increase  of  the  sheep.  The  notes  not  being  paid, 
the  plaintiff  brought  suit  to  foreclose  the  mortgages.  Decree  for 
plaintiff  and  defendants  appealed.] 

Eaktx,  J. —  *  *  *  Plaintiffs  contend  that  the  mortgage  of 
1905  includes  the  increase  of  all  sheep  mentioned  therein,  on  the 
theory  that  the  offspring  of  female  animals  belongs  to  the  owner  of 
the  mother.  This  is  true  in  most  states  w^here  the  chattel  mortgage 
transfers  the  title  to  the  mortgagee.  Northwesern  Bank  v.  Free- 
man, 171  U.  S.  620,  19  Sup.  Ct.  36,  43  L.  Ed.  307 ;  Jones,  Chattel 
Lltgs.  (5th  Ed.)  149.  With  the  exception  of  the  state  of  Texas, 
we  believe  that  all  the  courts  so  holding  do  so  on  the  theory  that 
the  mortgagee  holds  the  title  to  the  mortgaged  property.  In 
Texas  the  mortgage  does  not  transfer  the  title,  but  is  only  a  lien 
upon  the  property.  The  court  in  that  state  holds  that,  as  between 
the  parties  at  least,  the  lien  will  also  include  the  increase,  even 
when  not  especially  mentioned.  Bank  v.  Mortgage  Co.,  86  Tex. 
636,  26  S.  W.  488.  But,  under  the  rule  that  the  offspring  belongs 
to  the  owner  of  the  mother,  the  increase  in  Oregon  belongs  to  the 
mortgagor,  unless  tbe  increase  is  also  mortgaged,  as  he  is  the  owner 
of  the  mother.  This  is  the  holding  in  Shoobert  v,  De  Motta,  112 
Cal.  215,  44  Pac.  487,  53  Am.  St.  Rep.  207,  First  Nat.  Bank  v. 
Erreca,  116  Cal.  81,  47  Pac.  926,  58  Am.  St.  Rep.  133,  and  Battle 
Creek  Bank  v.  First  Nat.  Bank,  62  Neb.  825,  88  N.  W.  145,  56  L. 
R.  A.  124,  where  the  mortgage  is  only  a  lien.  In  Oregon  a  chattel 
mortgage  does  not  transfer  the  title  to  the  mortgaged  property,  but 
is  only  a  lien  thereon  (Chapman  v.  State,  5  Or.  432;  Knowles  v. 
Herbert,  11  Or.  54,  240,  4  Pac.  126),  and  unless  the  mortgage  in 

terms  includes  the  increase  it  is  not  subject  to  the  mortgage  lien. 

•     *    • 

C.P.  P.— 19 


290  Cases  on  Personal  Property 

Therefore,  the  decree  of  the  lower  court  is  affirmed.^  [The  court 
affirmed  the  decree  of  the  lower  court  because  of  certain  covenants 
in  the  lease.] 


Possession — Permitting  Mortgagor  to  Sell  in  Usual  Course  op 

Trade. 

ROBINSON  et  al.  v.  ELLIOTT. 

89  U.  S.  (22  Wall)  573,  22  L.  Ed.  758.     1875. 

The  facts  are  stated  in  the  opinion. 

Mr.  Justice  Davis. — This  is  an  appeal  from  a  decree  of  the  Cir- 
cuit Court  for  the  District  of  Indiana,  dismissing  a  bill  in  chancer}^ 
filed  by  the  appellants. 

The  bill  makes  substantially  this  case:  John  T.  and  Seth  A. 
Coolidge  were  partners  in  the  retail  dry  goods  trade  in  Evans- 
ville,  Indiana,  from  1863  to  the  7th  of  August,  1873,  when  one 
of  the  partners  died.  During  the  greater  part  of  this  time  Andrew 
L.  Robinson,  one  of  the  complainants,  was  the  accommodation  in- 
dorser  for  the  firm  to  the  first  National  Bank  of  Evansville,  from 
whom  they  obtained  loans  of  money  at  different  times  as  their 
convenience  required,  and  Julia  R.  Sloan,  the  other  complainant, 
also  loaned  them  money  as  they  needed  it.  The  money  thus  bor- 
rowed was  put  into  the  business  of  the  firm,  and  became  part  of 
their  capital  stock. 

The  indebtedness  to  the  bank  on  the  7th  of  July,  1871,  was 
$7,600,  and  to  Mrs.  Sloan  $3,174.  On  this  day  the  partners  exe- 
cuted a  mortgage  to  the  appellants,  on  their  store  of  goods,  furni- 
ture and  fixtures.  The  mortgage,  after  reciting  the  liability  of 
the  firm  to  the  appellant,  Robinson,  on  the  notes  indorsed  by  him, 
seven  in  number,  all  maturing  between  the  25th  of  July  and  the 
6th  of  October  of  the  same  year,  states  that  it  is  contemplated  that 
in  order  to  take  up  said  several  notes  or  some  of  them,  it  may 
become  necessary  to  renew  the  same  or  discount  other  notes,  to 
enable  the  said  mortgagors  to  take  up  said  notes,  or  raise  money 
therefor.  The  recital  of  the  indebtedness  to  the  appellant,  Mrs. 
Sloan,  by  note  at  four  months  with  interest,  is  also  made,  with 
the  statement  that,  if  not  convenient  to  pay  it  at  maturity,  it  may 
be  renewed  from  time  to  time  as  the  parties  may  agree. 

After  these  recitals  and  a  mutual  understanding  of  the  parties, 
concerning  the  continuance  of  the  indebtedness,  the  property  is 
conveyed  upon  the  express  agreement  that  until  default  be  made 

2  See  Childs '  Personal  Property,  §  195. 


Transfer  of  Property  by  Act  of  the  Parties         291 

in  the  payment  of  some  one  of  said  notes,  or  some  paper  in  renewal 
thereof,  the  mortgagors  may  remain  in  possession  of  the  goods  and 
sell  them  as  heretofore,  and  supply  their  places  with  other  goods, 
and  the  goods  substituted  by  purchase  for  those  sold  shall,  upon 
being  put  into  the  store  now  occupied  by  them,  or  any  other  in 
Evansville  in  which  they  may  be  put  for  sale,  be  subject  to  the 
lien  of  the  mortgage.     *     *     * 

The  mortgagors  remained  in  possession  of  the  property,  and 
bought  and  sold  as  they  had  been  accustomed  to  do,  from  the  7th 
of  July,  1871,  to  August  7,  1873,  when  Seth  A.  Coolidge  died. 
During  this  interval  of  twenty-five  months,  the  interest  and  less 
than  $100  of  the  principal  of  Mrs.  Sloan's  debt  was  paid,  and  the 
interest  and  about  one  third  of  the  principal  of  the  bank  debt. 
The  note  of  Mrs.  Sloan 's  was  not  renewed,  but  was  past  due  about 
twent3^-one  mouths.  Robinson  continued  to  indorse  for  the  firm. 
Immediately  after  the  death  of  Seth  A.  Coolidge  the  property  of 
the  firm,  consisting  of  the  old  stock,  goods  subsequently  purchased, 
and  debts  due  the  firm,  was  inventoried  and  appraised,  and  found 
to  be  very  little  in  excess  of  the  debts  owing  by  the  firm.  This 
inventory  and  appraisement  was  completed  on  September  15,  and 
the  following  day  the  appellants  seized  the  goods,  but  were  pre- 
vented from  selling  them  on  account  of  proceedings  in  bankruptcy 
having  been  commenced  against  the  surviving  partner,  who  was 
adjudged  a  bankrupt  on  the  4th  day  of  October. 

On  the  15th  of  November  the  defendant  was  appointed  assignee, 
and  demanded  the  goods  from  the  appellants,  who  refused  to  deliver 
them. 

The  bill  concludes  with  a  prayer  that  an  account  may  be  taken 
of  what  Is  due  the  appellants,  and  for  a  sale  of  the  goods. 

The  circuit  court  sustained  a  demurrer  to  the  bill,  and  rendered 
a  decree  dismissing  it,  which  are  the  errors  complained  of. 

There  are  few  subjects  which  have  been  more  discussed  in  the 
courts  of  this  country,  with  less  uniformity  of  deci.sion  than  that 
of  sales  and  mortgages  of  personal  goods,  without  delivery  of  pos- 
session. In  Indiana  the  Statute  of  13th  Elizabeth  has  been  adopted, 
and  two  provisions  applicable  to  this  case  engrafted  on  it.  The 
first  declares  that  "No  assignment  of  goods  by  way  of  mortgage 
shall  be  valid  against  any  other  person  than  the  parties  thereto, 
when  such  goods  are  not  delivered  to  the  mortgagee,  or  assignee, 
and  retained  by  him,  unless  such  assignment  or  mortgage  shall 
be  duly  recorded."  And  the  second  says,  "That  the  question  of 
fraudulent  intent  in  all  cases  shall  be  deemed  a  question  of  fact." 

Prior  to  the  incorporation  of  those  provisions  in  the  statute  it 


292  Cases  on  Personal,  Property 

was  necessary  to  the  validity  of  chattel  mortgages  in  Indiana  that 
there  should  be  manual  delivery  of  the  mortgaged  property  to  the 
mortgagee  who  should  continue  to  hold  the  same  in  his  possession. 
These  provisions  changed  the  law  in  this  particular,  and  permitted 
the  retention  of  the  possession  of  personal  property  by  the  mort- 
gagor in  a  chattel  mortgage  given  as  security  for  the  payment  of 
debts.  And  there  can  be  no  question  that  in  Indiana  a  mortgage, 
which  simply  allows  the  mortgagor  to  retain  the  possession  and 
use  of  the  property  until  breach  of  the  condition  is,  when  duly 
recorded,  prima  facie  valid.  But  it  is  insisted  that  the  effect  of 
these  provisions  is  also  to  make  a  mortgage  of  a  stock  of  goods, 
containing  a  provision  authorizing  the  mortgagor  to  retain  posses- 
sion for  the  purpose  of  selling  in  the  usual  course  of  trade,  prima 
facie  valid,  and  that  the  court  cannot,  as  a  matter  of  law,  pro- 
nounce it  fraudulent.  This,  we  think,  is  going  beyond  what  the 
legislature  intended.  If  registration  was  intended,  as  we  think 
it  was,  as  a  substitute  for  delivery  of  possession,  it  was  not  meant 
to  be  a  protection  for  all  the  other  stipulations  contained  in  a 
mortgage.  If  so,  it  could  be  used  as  a  cover  for  any  fraudulent 
transaction,  which  would  have  to  be  treated,  on  the  theory  advanced, 
as  valid,  until  the  contrary  was  shown. 

It  "is  true  the  law  conferred  on  the  parties  the  right  to  agree 
that  the  possession  of  the  property  could  remain  with  the  mort- 
gagor, provided  the  mortgage  be  recorded;  but  if  the  mortgage 
contains  other  provisions,  which,  on  legal  principles,  vitiate  the 
whole  instrument,  it  is  difficult  to  see  how  recording  it  could  make 
it  even  prima  facie  valid.    *    *    * 

There  is,  therefore,  nothing  in  the  way  of  the  consideration  of 
the  main  question  involved  in  this  controversy  on  its  merits. 

If  chattel  mortgages  were  formerly,  in  most  of  the  states,  treated 
as  invalid  unless  actual  possession  was  surrendered  to  the  mort- 
gagee, it  is  not  so  now,  for  modem  legislation  has,  as  a  general 
thing  (the  cases  to  the  contrary  being  exceptional),  conceded  the 
right  to  the  mortgagor  to  retain  possession,  if  the  transaction  is 
on  good  consideration  and  hona  fide.  This  concession  is  in  obedi- 
ence to  the  wants  of  trade,  which  deem  it  beneficial  to  the  com- 
munity that  the  owners  of  personal  property  should  be  able  to 
make  hona  fide  mortgages  of  it,  to  secure  creditors,  without  any 
actual  change  of  possession. 

But  the  creditor  must  take  care  in  making  his  contract  that  it 
does  not  contain  provisions  of  no  advantage  to  him,  but  which 
benefit  the  debtor,  and  were  designed  to  do  so,  and  are  injurious 
to  other  creditors.     The  law  will  not  sanction  a  proceeding  of  this 


Transfer  of  Property  by  Act  of  the  Parties         293 

kind.  It  will  not  allow  the  creditor  to  make  use  of  his  debt  for 
any  other  purpose  than  his  own  indemnity.  If  he  goes  beyond 
this,  and  puts  into  the  contract  stipulations  which  have  the  effect 
to  sliield  the  property  of  his  debtor,  so  that  creditors  are  delayed 
in  the  collection  of  their  debts,  a  court  of  equity  will  not  lend  its 
aid  to  enforce  the  contract  These  principles  are  not  disputed,  but 
the  courts  of  the  country  are  not  agreed  in  their  application  to 
mortgages,  with  somewhat  analogous  provisions  to  the  one  under 
consideration.  The  cases  cannot  be  reconciled  by  any  process  of 
reasoning,  or  on  any  principle  of  law.  As  the  question  has  jaever 
before  been  presented  to  this  court,  we  are  at  liberty  to  adopt  that 
rule  on  the  subject  which  seems  to  us  the  safest  and  wisest.  It  is 
not  difficult  to  see  that  the  mere  retention  and  use  of  personal 
property  until  default  is  altogether  a  different  thing  from  the 
retention  of  possession  accompanied  with  a  power  to  dispose  of  it 
for  the  benefit  of  the  mortgagor  alone.  The  former  is  permitted 
by  the  laws  of  Indiana,  is  consistent  with  the  idea  of  security, 
and  may  be  for  the  accommodation  of  the  mortgagee ;  but  the  latter 
is  inconsistent  with  the  nature  and  character  of  a  mortgage,  is 
no  protection  to  the  mortgagee,  and  of  itself  furnishes  a  pretty 
effectual  shield  to  a  dishonest  debtor.  We  are  not  prepared  to 
say  that  a  mortgage  under  the  Indiana  Statute  would  not  be  sus- 
tained which  allows  a  stock  of  goods  to  be  retained  by  the  mort- 
gagor, and  sold  by  him  at  retail  for  the  express  purpose  of  applying 
the  proceeds  to  the  payment  of  the  mortgage  debt.  Indeed,  it 
would  seem  that  such  an  arrangement,  if  honestly  carried  out, 
would  be  for  the  mutual  advantage  of  the  mortgagee  and  the  unprc- 
ferred  creditors.  But  there  are  features  engrafted  on  this  mortgage 
which  are  not  only  to  the  prejudice  of  creditors,  but  which  show 
that  other  considera'tions  than  the  security  of  the  mortgagees,  or 
their  accommodation  even,  entered  into  the  contract.  Both  the 
possession  and  right  of  disposition  remain  with  the  mortgagors. 
They  are  to  deal  with  the  property  as  their  own,  sell  it  at  retail, 
and  use  the  money  thus  obtained  to  replenish  their  stock.  There 
is  no  covenant  to  account  with  the  mortgagees,  nor  any  recog- 
nition that  the  property  is  sold  for  their  benefit.  Instead  of  the 
mortgage  being  directed  solely  to  the  hona  fide  security  of  the 
debts  then  existing,  and  their  payment  at  maturity,  it  is  based  on 
the  idea  that  they  may  be  indefinitely  prolonged.  As  long  as  the 
bank  paper  could  be  renewed,  Robinson  con.scntcd  to  be  bound,  and 
in  Jlrs.  Sloan's  case  it  was  not  expected  that  the  debt  would  be 
paid  at  maturity,  but  that  it  would  be  renewed  from  time  to  time, 


294  Cases  on  Personal  Property 

as  the  parties  might  agree.  It  is  very  clear  that  the  instrument 
was  executed  on  the  theory  that  the  business  could  be  carried  on 
as  formerly  by  the  continued  indorsement  of  Robinson,  and  that 
Mrs.  Sloan  was  indifferent  about  prompt  payment.  The  correct- 
ness of  this  theory  is  proved  by  the  subsequent  conduct  of  the 
parties,  for  the  mortgagees  remained  in  possession  of  the  property, 
and  bought  and  sold  and  traded  in  the  manner  of  retail  dry  goods 
merchants,  from  July  7,  1871,  to  August  7,  1873.  During  this 
period  of  twenty-five  months  Robinson  indorsed  as  usual,  and 
Mrs.  Sloan  was  content  with  the  payment  of  a  small  portion  ot 
the  principal  of  her  debt.  Instead  of  getting  it  renewed,  as  con- 
templated by  the  mortgage,  she  seems  to  have  been  willing  to 
let  it  remain  dishonored,  and  the  fair  inference  from  the  aver- 
ments of  the  bill  is  that  Robinson  would  have  continued  to  indorse, 
and  Mrs.  Sloan  to  exhibit  the  same  easy  indifference  on  the  subject 
of  her  indebtedness,  if  the  death  of  Seth  A.  Coolidge  had  not  dis- 
solved the  firm  aud  compelled  an  inventory  and  appraisement, 
showing  the  desperate  condition  of  the  mortgagors.  It  hardly  need 
be  said  that  a  mortgage  which,  by  its  very  terms,  authorizes  the 
parties  to  accomplish  such  objects  is,  to  say  the  least  of  it,  con- 
structively fraudulent. 

Manifestly  it  was  executed  to  enable  the  mortgagors  to  continue 
their  business  and  appear  to  the  world  as  the  absolute  owners  of 
the  goods,  and  enjoy  all  the  advantages  resulting  therefrom.  *  *  * 
There  was  nothing  to  put  creditors  on  their  guard.  On  the  con- 
traiy,  this  long  continued  possession  and  apparent  o^vnership  were 
well  calculated  to  create  confidence  and  disarm  suspicion.  But 
apart  from  this,  security  was  not  the  leading  object.  If  so,  why 
does  Mrs.  Sloan 's  note  remain  overdue  for  twenty-one  months,  and 
why  does  Robinson  continue  to  indorse  1  This  conduct  is  the  result 
of  trust  and  confidence,  which  as  Lord  Coke  tells  us,  are  ever  found 
to  constitute  the  apparel  and  cover  of  fraud. 

In  truth,  the  mortgage,  if  it  can  be  so  called,  is  but  an  expression 
of  confidence,  for  there  can  be  no  real  security  where  there  is  no 
certain  lien. 

"Whatever  may  have  been  the  motive  which  actuated  the  parties 
to  this  instrument,  it  is  manifest  that  the  necessary  result  of- what 
they  did  do  was  to  allow  the  mortgagors,  under  cover  of  the  mort- 
gage, to  sell  the  goods  as  their  own,  and  appropriate  the  proceeds 
to  their  ov/n  purposes ;  and  this,  too,  for  an  indefinite  length  of  time. 
A  mortgage  which,  in  its  very  terms,  contemplates  such  results, 
besides  being  no  security  to  the  mortgagees,  operates  in  the  most 


Transfer  op  Property  by  Act  op  the  Parties         295 

effectual  manner  to  -ward  olf  other  creditors ;  and  where  the  instru- 
ment on  its  face  shows  that  the  legal  effect  of  it  is  to  delay  creditors, 
the  law  imputes  to  it  a  fraudulent  purpose.  The  views  we  have 
taken  of  this  case  harmonize  with  the  English  common  law  doctrine, 
and  are  sustained  by  a  number  of  American  decisions.  In  the 
American  editor's  note  to  Twyne's  case;  Smith,  L.  Cas.,  p.  52,  n. 
7th  Am.  ed.,  most  of  the  cas(?s  in  this  country  on  the  subject  are 
collected  and  classified.  See  also  Mittnacht  v.  Kelly,  3  Keyes,  407 ; 
Yates  V.  Olmsted,  65  Barb.  43 ;  Barnet  v.  Fergus,  51  111.  352 ;  In 
re  Llanly,  2  Bond,  261 ;  In  re  KsiUey,  2  Biss.  383. 

*  *  *  Although  we  have  been  unable  to  find  any  case  from 
Indiana  of  similar  facts  with  the  one  at  bar,  yet  the  decision  in  the 
Ins.  Co.  V.  Wilcoxson,  21  Ind.  355,  would  seem  ix)  imply  that  when 
such  a  case  did  arise  it  would  be  decided  in  accordance  with  the 
views  w^e  have  presented.  The  point  ruled  in  that  case  is  that  if  a 
mortgage  is  executed  merely  to  protect  property  in  the  hands  of  the 
mortgagor  from  his  creditors  other  than  the  mortgagee,  the  mort- 
gagor retaining  possession  and  the  right  of  disposition,  and  these 
facts  appear  upon  the  face  of  the  mortgage,  it  would  be  fraudulent 
and  void  as  against  other  creditors,  and  should  be  so  declared  by 
the  court.  And  the  court,  to  sustain  this  proposition,  refer  to  Free- 
man v.  Rawson,  5  Ohio  1,  a  standard  authority  in  this  class  of  cases, 
for  the  views  we  have  advanced  on  this  subject. 

The  decree  of  the  Circuit  Court  is  affirmed.^ 


EPHRAIM  V.  KELLEHER  et  al. 
4  Wffsh.  243,  29  Pac.  985,  18  L.  R.  A.  604.     1892. 
The  facts  are  stated  in  the  opinion. 

Ajn)ER.S,  C.  J.— From  AugiLst,  1889,  until  March  13,  1890,  appel- 
lant and  TV.  T.  Kellclier  w^ere  partners  doing  business  as  retail  diy 
goods  merchants  in  the  city  of  Seattle,  in  this  state,  under  the  firm 
name  and  style  of  W.  T.  Kelleher  &  Co.  On  February  28,  1890, 
the  firm,  being  indebted,  settled  with  their  creditors  by  pa>nng  half 
of  their  indebtedness  in  ca.sh,  and  giving  their  firm  notes  for  the 
balance  to  Schweitzer  &  Co.,  of  San  Francisco,  who  represented  all 
of  their  creditors.     There  were  four  of  these  notes,  each  for  the 

3  See  Childs'  Personal  Property,  §§    200,  204. 


296  Cases  on  Personal  Property 

sum  of  $3,133.80,  and  amounting  in  the  aggregate  to  $12,534.20. 
On  March  13,  1890,  the  firm,  of  Kelleher  &  Co.  was  dissolved  b}' 
mutual  consent.  By  the  terms  of  the  agreement  of  dissolution, 
Ephraim  retired  from  the  firm,  and  Kelleher  was  to  retain  all  the 
stock  of  goods  then  on  hand,  and  all  other  firm  assets,  and  promised 
and  agreed  to  pay  all  of  the  copartnership  notes  and  debts,  and  to 
save  Ephraim  harmless  from  all  liability  on  account  thereof.  It 
was  also  agreed  between  them  that  Ephraim  should  retain  the  same 
control  of  the  business  that  he  had  before  the  dissolution  until  the 
notes  and  debts  of  the  firm  for  which  he  was  liable  should  be  paid ; 
but  it  appears  from  the  evidence  that  that  part  of  the  agreement 
was  disregarded,  and  that,  in  fact,  the  business  was  thereafter  con- 
ducted exclusively  by  Kelleher.  Notice  of  the  dissolution  was  given 
by  publication  in  the  newspapers  and  personally  to  those  with  whom 
the  firm  had  formerly  dealt,  but  the  firm  name  of  Kelleher  &  Co. 
was  retained  by  Kelleher  after  the  dissolution.  Ephraim  remained 
in  Seattle  after  the  dissolution  a  greater  part  of  the  time,  until  about 
July  20  or  25,  1890,  at  which  time  he  concluded  to  go  to  his  home 
in  California  to  remain.  Before  leaving,  however,  he  entered  into 
an  agreement  with  Kelleher  whereby  the  latter  was  to  give  him  a 
chattel  mortgage  upon  the  entire  stock  of  goods  then  in  his  store 
in  Seattle,  and  upon  the  fixtures,  and  all  his  book  accounts  and 
notes,  to  indemnify  him  against  his  liabilities  upon  the  notes  to 
Schweitzer  &  Co.,  then  amounting  to  $9,401.40  (one  of  the  notes 
having  been  paid),  and  upon  an  indebtedness  of  Kelleher  of  $465 
to  Newhall  Sons  &  Co.,  and  of  $300  to  the  Mert3ed  Woolen  ]\Iill 
Company,  for  which  he  had  agreed  to  be  responsible.  The  mortgage 
was  executed  according  to  this  agreement  by  Kelleher  and  wife,  on 
July  28,  1890,  and  delivered  to  Ephraim 's  agent,  who  caused  it  to 
be  recorded  on  August  11,  1890.  A  day  or  two  subsequent  to  the 
recording  of  the  mortgage  the  respondents  Fleischener,  Mayer  & 
Co.  and  Newstadter  Bros.,  respectively,  commenced  actions  against 
Kelleher  in  the  Superior  Court  of  King  County,  in  which  action 
writs  of  attachment  were  issued  and  placed  in  the  hands  of  respond- 
ent LIcGraw,  who  was  sheriff  of  King  county,  by  virtue  of  which  he 
levied  upon  and  took  possession  of  the  property  and  goods  belonging 
to  said  Kelleher,  and  covered  by  the  said  mortgage.  Appellant, 
Ephraim,  thereupon  commenced  an  action  to  foreclose  his  chattel 
mortgage,  and  asked  to  have  the  same  declared  to  be  a  lien  prior 
to  the  attaclunent  liens  of  the  defendants,  and  prayed  for  the 
appointment  of  a  receiver  to  take  charge  of  and  sell  the  property 
under  the  direction   of  the  court.     A   receiver  was  accordingly 


Transfer  of  Property  by  Act  of  the  Parties         297 

appointed,  who  sold  the  property,  and  now  holds  the  proceeds  sub- 
ject to  the  order  of  the  court.  As  a  defense  to  the  action,  the 
attaching  defendants  alleged  in  their  answer  that  the  morgage  was 
given  without  consideration,  and  was  executed  and  delivered  by 
Kelleher  for  the  purpose  of  hindering,  delaying,  and  defrauding 
his  creditors,  and  the  said  defendants,  and  that  the  same  was  fraud- 
ulent and  void  as  to  the  defendants  and  the  creditors  of  Kelleher. 
*  *  *  As  a  conclusion  of  law  from  the  facts  found,  the  court 
stated  that,  as  to  the  assignee  and  creditors  of  Kelleher,  the  mort- 
gage sued  on  was  fraudulent  and  void,  and  that  the  proceeds  of  the 
property  in  the  hands  of  the  receiver  should  be  delivered  to  the 
assignee  as  assets  under  the  assignment.  The  plaintiff  excepted  to 
all  the  conclusions  of  law  stated  by  the  court,  except  that  which 
stated  that  the  plaintiff  was  entitled  to  judgment  against  the  defend- 
ants, and  moved  the  court  to  so  change  the  conclusions  of  law  as 
to  state  that  the  mortgage  should  be  foreclosed  as  against  all  of  the 
defendants.  The  court  denied  the  motion,  and  the  plaintiff  duly 
excepted.  Judgment  was  thereupon  entered  in  accordance  with  the 
conclusions  of  law  stated  by  the  court,  and  the  plaintiff  appealed 
to  this  court. 

*  *  *  Xo  provision  is  made  in  the  instrument  for  selling  the 
mortgaged  goods  by  the  mortgagor,  but  the  proof  shows  that  at 
the  time  the  mortgage  was  given  it  was  understood  and  agreed 
between  the  parties  that  Kelleher  should  have  the  right  to  sell  the 
goods  in  the  usual  course  of  trade,  and  use  part  of  the  proceeds  to 
pay  for  such  new  goods  as  might  be  required  to  keep  up  the  stock, 
and  to  defray  the  expenses  of  conducting  the  business,  and  apply 
the  balance  in  discharge  of  the  obligation  set  forth  in  the  mortgage. 

The  controlling  question  in  this  case  is  whether  the  court  below 
eiTcd  in  adjudging  the  mortgage  in  question  fraudulent  and  void 
as  to  the  assignee  and  the  creditors  of  the  mortgagor.  The  instru- 
ment is  in  the  usual  form  of  indemnity  mortgages.  It  shows  no 
infirmities  upon  its  face,  and  w^as  executed  in  accordance  with  the 
provisions  of  the  statute,  and  apparently  for  a  legitimate  purpose ; 
and,  if  it  is  to  be  declared  invalid,  it  must  be  either  by  reason  of 
the  parol  agreement  between  the  parties  at  the  time  of  its  execution, 
whereby  the  mortgagor  was  permitted  to  appropriate  part  of  the 
proceeds  of  the  property  for  the  purposes  of  replenishing  the  stock 
and  paying  the  expenses  of  carrying  on  the  business,  or  because  the 
mortgage  was  given  and  received  for  the  purpose  of  enabling  the 
mortgagor  to  defraud  his  other  creditors.  The  doctrine  that  fraud 
may  be  deduced,  as  a  legal  conclusion,  from  the  mere  retention  by 


298  Cases  on  Personal  Property 

the  mortgagor  of  the  property  mortgaged,  can  have  no  application 
under  our  law  of  chattel  mortgages,  for  the  reason  that  by  our 
statute  the  mortgagor  is  the  owner  of  the  property,  and,  unless  he 
stipulates  to  the  contrary,  is  entitled  to  the  possession,  even  after 
default.  The  mortgage  is  a  mere  lien,  by  virtue  of  which  no  title 
passes  or  can  pass  to  the  mortgagee,  except  by  foreclosure  and  sale, 
in  the  manner  provided  by  law.  This  is  the  plain  import  of  the 
provisions  of  chapter  141,  and  §§618,  619,  Code  1881  (1  Hill's 
Code,  cc.  1-3,  tit.  19),  relating  to  mortgages  of  personal  property; 
and,  the  mortgagor  in  this  case  having  a  right  to  the  possession  of 
the  mortgaged  goods,  no  presumption  of  fraud  can  arise  from  the 
fact  that  he  remained  in  possession  until  the  levy  of  the  writs  of 
attachment.  This  proposition  does  not  seem  to  be  disputed  by  the 
respondents.  Nor  is  it  claimed  that  the  mortgage  in  controversy 
would  have  been  rendered  invalid  by  an  agreement  or  provision  for 
the  sale  of  the  goods  by  the  mortgagor  in  the  ordinary  course  of 
trade,  provided  the  proceeds  were  to  be  applied  exclusively  to  the 
payment  of  the  mortgage  debt.  Such  a  mortgage  was  held  valid 
in  the  case  of  Langert  v.  Brown,  3  "Wash.  T.  102,  13  Pac.  Kep.  704, 
and  we  feel  confident  that  no  court  in  such  a  case  would  now  hold 
the  contrary  doctrine,  unless  controlled  by  statute  or  bound  by 
prior  decisions. 

But  the  respondents  contend  that  the  fact  that  the  mortgagee 
agreed  to  allow  the  mortgagor  to  use  part  of  the  proceeds  of  the 
sales  to  purchase  additions  to  the  stock,  and  to  pay  the  running 
expenses  of  the  business,  invalidated  the  mortgage  as  to  the  creditors 
of  Kelleher;  and  in  support  of  their  contention  they  cite,  among 
others,  the  case  of  Wineburgh  v.  Schaer,  2  Wash.  T.  328,  5  Pac.  Rep. 
299,  and  that  of  Byrd  v.  Forbes,  3  Wash.  T.  318,  13  Pac.  Rep.  715. 
In  the  former  case  the  question  of  the  validity  of  a  chattel  mortgage 
was  raised  upon  a  demurrer  to  the  answer  which  alleged  that  the 
mortgagor  retained  possession  of  the  goods,  and  sold  and  disposed 
of  the  same  in  the  usual  course  of  business,  and  applied  the  pro- 
ceeds to  his  own  use  and  benefit,  with  the  knowledge  and  consent 
of  the  mortgagee;  and  the  court  held,  upon  the  facts  as  admitted 
by  the  demurrer,  that  the  mortgage  was  void  as  to  the  creditors  of 
the  mortgagor.  But  in  so  holding  the  court  did  not  attempt  to 
express  its  own  view  as  to  the  rule  that  should  govern  in  determining 
the  validity  of  such  instruments,  but  followed  the  binding  decision 
of  the  Supreme  Court  of  the  United  States  in  the  case  of  Robinson 
V.  Elliott,  22  Wall.  513.  In  delivering  the  opinion  of  the  court, 
Turner,  J.,  said:  "     *     *     *     jt  -^yag  decided  in  that  case,  by  the 


Tbaktsfer  of  Property  by  Act  of  the  Parties  299 

unanimous  voice  of  the  full  bench,  that  a  chattel  mortgage  upon  a 
stock  of  goods  in  trade,  which  permits  the  mortgagor  to  remain  in 
possession  of  the  property,  and  in  its  disposition  by  sale  in  due 
course  of  trade,  at  his  discretion,  until  the  maturity  of  the  debt 
purporting  to  be  secured  by  it,  is  fraudulent  and  void  as  to  other 
creditors,  -^-ithout  reference  to  the  homi  fides  of  the  parties.  We 
gather  from  the  opinion,  however,  that  the  court  strongly  doubted 
if  the  mortgage  would  be  invalid  in  case  the  money  derived  from 
the  sale  of  the  mortgaged  property  was  applied,  and  was  understood 
to  be  applied,  to  the  extinction,  in  whole  or  in  part,  of'  the  mortgage 
debt.  This  authority  must  govern  us  in  the  decision  of  this  case." 
But  that  case  can  hardly  be  regarded  as  an  authority  in  support  of 
the  contention  of  respondents,  for  the  reason  that  in  the  ease  at  bar 
it  does  not  appear  that  the  mortgagor  was  authorized  by  the  mort- 
gagee to  apply  the  proceeds  of  the  property  sold  to  his  own  use  and 
benefit.  But  the  case  of  Byrd  v.  F.orbes,  to  some-  extent  at  least, 
would  seem  to  support  the  claim  of  the  respondents,  and  was  prob- 
ably relied  on  as  authority  for  the  conclusion  reached  by  the  learned 
judge  of  the  superior  court  in  this  case.  In  that  ease  it  was  stipu- 
lated, among  other  things,  in  the  mortgage,  that  ' '  until  default  be 
made  in  the  payment  of  any  of  the  said  promissory  notes,  and  so 
long  as  the  mortgagor  shall  keep  up  his  stock  of  goods  so  as  to  be 
good  and  ample  security  for  the  payment  of  the  principal  and 
interest  of  the  said  promissory  notes,  that  the  said  mortgagor  may 
and  shall  have  the  right  to  retain  possession  of  the  mortgaged  prop- 
erty, and  sell  and  dispose  of  the  same  in  the  usual  course  of  his 
retail  business  and  trade,  or  in  job  lots  for  the  sole  use  and  benefit 
of  mortgagee,  until  the  said  promissory  notes  are  fully  paid, 
and  said  mortgage  debt  is  fully  paid  and  satisfied."  And 
the  court  held  that  the  mortgage  was  void  for  indefinite- 
ness,  and  as  being  a  fraud  on  creditors  of  the  mortgagor. 
It  was  observed  by  Chief  Justice  Greene,  who  delivered  the  opinion 
of  the  court,  that  the  mortgage  fell  fairly  within  the  principle 
underlying  the  case  of  Robimson  v.  Elliott,  22  Wall.  513.  But  it 
would  seem  that  the  decision  of  the  court,  in  its  application  of  the 
doctrine  of  constructive  fraud,  really  went  beyond  the  underlying 
principle  in  the  case  of  Robinson  v.  Elliott ;  for  in  the  latter  case 
Mr.  Justice  Davis,  speaking  for  the  court,  used  this  language :  "But 
there  are  features  ingrafted  on  this  mortgage  which  are  not  only 
to  the  prejudice  of  creditors,  but  which  show  that  other  considera- 
tions than  the  security  of  the  mortgagees,  or  their  accommodation 
even,  entered  into  tlie  contract.    Both  the  possession  and  right  of 


300  Cases  on  Pprsonal  Property 

disposition  remain  with  the  mortgagors.  They  are  to  deal  with 
the  property  as  their  own,  sell  it  at  retail,  and  use  the  money  thus 
obtained  to  replenish  their  stock.  There  is  no  covenant  to  accouat 
with  the  mortgagees,  nor  any  recognition  that  the  property  is  sold 
for  their  benefit."  It  may  be  reasonably  inferred,  from  the  lan- 
guage above  quoted,  that  tlie  court  would  have  sustained  the  mort- 
gage then  before  it  had  the  features  spoken  of  not  been  ingrafted 
on  it;  and  we  do  not  feel  certain  that  the  court  would  have  held 
the  mortgage  void  in  the  case  of  Byrd  v.  Forbes,  on  the  authority 
of  Robinson  v.  Elliott,  if  it  had  had  before  it  the  late  case  of  Ether- 
idge  V.  Sperry,  139  U.  S.  266,  11  Sup.  Ct.  Rep.  565,  in  which  that 
case,  among  others,  is  reviewed,  and  its  meaning  explained.  We 
therefore  do  not  consider  the  case  of  Byrd  v.  Forbes  as  absolutely 
settling  the  law  of  this  state  upon  the  question,  and  we  certainly 
would  not  be  disposed  to  extend  the  doctrine  there  laid  down,  even 
if  we  should  apply  it  to  a  like  state  of  facts.     *     *     * 

In  New  V.  Sailors,  114  Ind.  407,  16  N.  E.  Rep.  609,  the  mortgagor 
w^as  authorized  by  the  terms  of  the  mortgage  to  retain  the  possession 
of  the  property  mortgaged,  with  authority  to  sell  at  retail,  in  the 
ordinary  course  of  trade.  There  was  no  agreement  that  the  pro- 
ceeds should  be  applied  to  the  liquidation  of  the  mortgage  debt,  nor 
anything  to  show  an  agreement  or  understanding  that  the  mortga- 
gor might  use  the  proceeds  for  his  owm  benefit,  and  it  was  held 
that  it  could  not  be  judicially  inferred  that  the  mortgage  was  made 
with  fraudulent  intent.  See,  also,  Fisher  v.  Syfers,  109  Ind.  514, 
10  N.  E.  Rep.  306  ;  McFadden  v.  Fritz,  90  Ind.  590 ;  Morris,  v.  Stern, 
80  Ind.  227.  And  it  may  be  here  remarked  that  these  cases  hold 
the  contrary  doctrine  to  that  supposed  to  obtain  in  Indiana  at  the 
time  the  decision  in  the  case  of  Robinson  v.  Elliott  was  rendered; 
and  as  the  federal  courts  follow  the  decisions  of  the  highest  courts 
of  the  several  states  in  which  the  actions  arise  in  determining  the 
validity  of  chattel  mortgages,  if  the  same  case  were  again  before 
the  Supreme  Court  of  the  United  States  it  would  in  all  probability 
be  decided  in  accordance  with  the  doctrine  of  the  Indiana  decisions 
to  which  we  have  referred.  See  Etheridge  v.  Sperry,  supra.  In 
Kansas,  mortgages  with  stipulations  like  the  one  before  us  have, 
so  far  as  we  are  aware,  been  universally  sustained,  if  made  in  good 
faith.  In  Whitson  v.  Griffis,  39  Kan.  211,  17  Pac.  Rep.  801,  a  case 
quite  parallel  with  this,  a  chattel  mortgage  on  a  stock  of  goods 
containing  a  provision  that  the  mortgagor  might  retain  possession 
and  sell  the  property  in  the  course  of  trade,  and  account  for  the 
proceeds,  and  receive  out  of  such  proceeds  the  expenses  of  operating 


Transfer  of  Property  by  Act  of  the  Parties         301 

the  business,  together  ^vith  compensation  and  the  means  of  sub- 
sistence of  the  family  of  the  mortgagor,  during  the  continuance  of 
the  business,  was  upheld  and  sustained  by  the  court ;  and  the  earlier 
decisions  of  that  court  are  to  the  same  effect.    See  Frankhouser  v. 
Ellett,  22  Kan.  127;  Howard  v.  Rohlfing,  36  Kan.  357,  13  Pac. 
Eep.  566.    In  Michigan,  as  in  Indiana,  the  question  of  fraudulent 
intent  is  declared  by  statute  to  be  a  question  of  fact  for  the  deter- 
mination of  the  jury.    But  the  decisions  of  the  supreme  court  of 
that  state  discuss  the  question  quite  as  much  upon  principle  as  with 
reference  to  the  statute,  and  we  infer  from  the  adjudged  cases  that 
the  rulings  of  the  court  would  have  been  the  same  had  no  statute 
been  enacted  upon  the  subject.     In  the  leading  case  of  Oliver  v. 
Eaton,  7  ^lich.  108,  which  was  verjr  similar  in  point  of  fact  to  the 
one  now  before  us,  the  question  of  fraudulent  chattel  mortgages  is 
very  exhaustively  discussed,  and  the  law  applicable  to  the  subject 
very  clearly  and  forcibly  stated.    In  speaking  of  what  instruments 
are  void  upon  their  face,  and  why  they  are  so,  the  court  said :    ' '  The 
law,  where  an  instrument  contains  illegal  provisions,  and  such  as 
are  not  reconcilable,  on  any  possible  hypothesis,  with  an  honest  or 
legal  intent,  declares  it  void  upon  its  face,  because  no  evidence 
could  change  its  character.    The  cases  in  which  this  absolute  and 
unchangeable  presumption  arises   are  not  numerous.      There  are 
other  eases  in  which,  upon  the  face  of  the  instrument,  a  statutory 
presumption  arises  which  is  only  prima  facie  evidence  of  fraud; 
and  there  are  still  more  cases  in  which  the  whole  illegality  charged 
must  be  made  out  by  extrinsic  evidence.    In  both  of  the  classes  last 
named  the  jury  must  determine  all  the  facts."    And  in  the  same 
case  the  court  makes  this  pertinent  observation :    ''By  leaving  each 
case  to  the  jury,  each  instmment  is  made  to  stand  upon  its  own 
-  actual  merits ;  which  is  much  safer  in  questions  of  fraud  whose  mani- 
festations are  infinitely  various  than  the  adoption  of  fixed  rules, 
which  must  fail  to  meet  numerous  cases."    See,  also,  Gay  v.  Bid- 
well,  7  ]\Iieh.  519,  and  People  v.  Bristol,  35  Mich.  28.    In  Iowa,  the 
same  doctrine  has  been  maintained  by  an  unbroken  line  of  decisions 
for  more  than  a  quarter  of  a  century.    Torbert  v.  Ilayden,  11  Iowa 
435 ;  Hughes  v.  Cory,  20  Iowa  399 ;  Meyer  v.  Oage,  65  Iowa  606, 
22  N.  W.  Rep.  892 ;  Meyer  v.  Evans,  QG  Iowa  179,  23  N.  ^Y.  Rep.  386. 

*  *  *  In  Etheridge  v.  Sperry,  supra,  the  Iowa  decisions  above 
cited  are  referred  to,  and  the  doctrine  held  by  them  approved. 

*  *  *  The  Supreme  Court  of  Iowa  held  the  mortgage  valid,  and 
an  appeal  was  prosecuted  to  the  Supreme  Court  of  the  United 
States.    The  plaintiff  in  error  relied  on  the  eases  of  Bank  v.  Hunt, 


302  Cases  on  Personal  Property 

11  Wall.  391;  Robinson  v.  Elliott,  22  Wall.  513;  and  Means  v. 
Dowd,  128  U.  S.  273,  9  Sup.  Ct.  Rep.  65,— all  cited  by  the  respond- 
ents in  this  case, — as  sustaining  his  contention  that  the  instruments 
were  invalid  in  law.  And  in  reference  to  those  cases  Mr.  Justice 
Brewer,  in  delivering  the  opinion  of  the  court,  said :  ' '  While  there 
are  some  points  of  similarity  between  each  of  those  cases  and  this, 
and  while  there  are  observations  in  the  opinions  filed  in  them  perti- 
nent and  correct  with  reference  to  the  special  facts,  which,  if  dis- 
connected from  those  facts  and  applied  here,  might  seem  authori- 
tative, yet  there  are  clear  and  sufficient  reasons  why  neither  the 
decisions  nor  the  opinions  should  control  this  case. ' '  After  refer- 
ring to  the  facts  appearing  in  each  of  those  cases,  and  fully  explain- 
ing the  intent  and  meaning  of  the  case  of  Robinson  v.  Elliott,  the 
court  proceeded  to  say :  "In  neither  of  those  cases*  is  it  affirmed  that 
a  chattel  mortgage  on  a  stock  of  goods  is  necessarily  invalidated 
by  the  fact  that  either  in  the  mortgage  or  by  parol  agreement 
between  the  parties  the  mortgagor  is  to  retain  possession  with  the 
right  to  sell  the  goods  at  retail.  On  the  contrary,  it  is  clearly  recog- 
nized in  them  that  such  an  instrument  is  valid,  notwithstanding 
these  stipulations,  if  it  appears  that  the  sales  were  to  be  for  the 
benefit  of  the  mortgagee.  What  was  meant  was  that  such  an  instru- 
ment should  not  be  used  to  enable  the  mortgagor  to  continue  in 
business  as  theretofore,  with  full  control  of  the  property  and  busi- 
ness, and  appropriating  to  himself  the  benefits  thereof,  and  all  the 
while  holding  the  instrument  as  a  shield  against  the  attacks  of 
unsecured  creditors."  In  determining  the  question  before  it  the 
court  accepted  the  law  of  Iowa  upon  the  subject,  as  settled  by  the 
decisions  of  the  supreme  court  of  that  state,  as  decisive,  and  accord- 
ingly held  the  mortgages  in  controversy  valid.     *     *     * 

While  the  decisions  of  the  courts  of  the  various  states  on  this 
subject  are  irreconcilably  in  conflict,  it  seems  to  us  that  the  rule 
adopted  in  the  foregoing  decisions  not  only  rests  on  sound  prin- 
ciples, but  is  dictated  by  wisdom  and  justice.  It  is  claimed,  how- 
ever, by  the  learned  counsel  for  respondents,  that  this  mortgage 
is  fraudulent  in  fact,  if  not  in  law.  But  we  have  carefully  exam- 
ined all  the  testimony  in  the  case,  and  we  are  not  convinced  by  the 
evidence  that  appellant  was  actuated  in  accepting  this  mortgage 
by  any  other  motive  than  a  desire  to  secure  indemnity  from  liability 
upon  the  debts  therein  set  forth.     *     *     * 

From  all  the  facts  in  this  case,  we  are  satisfied  that  this  mortgage 
was  valid  between  the  parties  when  made,  and  we  are  not  satisfied 
that  it  was  rendered  invalid  by  any  subsequent  conduct  of  the 


Transfer  of  Property  by  Act  of  the  Parties         303 

parties.  "We  are  therefore  constrained  to  conclude  that  the  court 
erred  in  holding  the  instrument  void  as  to  respondents.  *  *  * 
The  judgment  of  the  court  below  is  reversed,  and  the  cause  re- 
manded, with  directions  to  enter  judgment  for  plaintiff,  and  against 
defendant  W.  T.  Kelleher,  for  said  sum  of  $7,215.98,  together  with 
10  per  cent  of  said  sum  as  attorneys'  fees,  and  for  costs,  and  a 
decree  foreclosing  said  mortgage  lieu,  and  applying  the  proceeds  of 
said  mortgaged  property  to  the  satisfaction  of  said  judgment  and 
decree. 

HoYT,  Stiles,  Scott,  and  Dunbar,  JJ.,  concur.^ 


Description. 

JOHNSON  et  al.  v.  GRISSARD. 

51  Ark.  410,  11  S.  W.  585,  3  L.  R.  A.  795.     1889. 

The  facts  are  stated  in  the  opinion. 

Hughes,  J. — The  appellee  brought  his  action  in  the  Faulkner 
Circuit  Court  to  recover  the  value  of  300  pounds  of  seed  cotton, 
and  50  bushels  of  corn,  which  he  alleged  he  owned,  and  appellants 
had  converted  to  their  own  use  in  1884.  Appellants  answered, 
denied  the  ownership  of  appellee,  the  conversion  by  them,  and  that 
appellee  was  damaged.  The  case  was  tried  by  the  court  sitting 
as  a  jury%  upon  the  complaint,  answer,  and  an  agreed  statement 
of  facts.  The  court  found  for  appellee,  and  gave  judgment  in  his 
favor  for  $63.40.  Appellee  claimed  the  property  under  a  mortgage 
executed  to  him  by  T.  B.  Lawson,  and  recorded  in  that  county  on 
the  6th  day  of  December,  1883.  The  property  is  described  therein 
as  "all  my  crop  of  corn,  cotton,  or  other  produce  that  I  may  raise, 
or  in  which  I  may  in  any  manner  have  an  interest  for  the  year 
1884,  in  Faulkner  County,  Arkansas,"  and  other  property  not  in 
controversy  in  this  case.     On  the  trial  the  appellee  offered  this 

♦See  Childs'  Personal  Property,  §§200,  204. 

As  to  validity  of  chattel  mortgage  on  property  not  in  existence  or  having 
only  potential  existence,  see:  Rochester  Distilling  Co.  v.  Rasey,  p.  239; 
Kellogg  V.  Lovely,  p.  244;  Dcmcrs  v.  Graham,  p.  247;  Holt  v.  Lucas,  p.  252. 
Also:  Deeley  et  al.  v.  Dwight  et  al.,  1.32  N.  Y.  59,  ,30  N.  E.  259,  18  L.  R.  A.  298; 
Battle  Creek  Valley  Lank  v.  First  National  Bank  of  Madison,  62  Neb.  825, 
88  N.  W.  145,  56  L.  R.  A.  125;  Hopkins  Fine  Stock  Co.  v.  Reid,  106  Iowa  78, 
75  N.  W.  656. 


304  Cases  on  Personal  Property 

mortgage  in  evidence.  The  appellants  objected,  on  the  ground  that 
"the  description  of  the  mortgaged  property  is  indefinite  and  uncer- 
tain, and,  against  the  claims  of  third  parties,  gives  no  lien  to  plain- 
tiff." The  court  considered  the  mortgage  in  evidence,  and  found 
that  Lawson  raised  a  crop  of  cotton  and  com  on  the  land  of  the 
defendants,  Johnson  &  Johnson,  in  Faulkner  County,  Ark.,  in  1884 ; 
that  Lawson  paid  Johnson  &  Johnson  all  the  rent  due  them  in  1884 ; 
that  Grissard's  debt  due  him  by  Lawson  was  not  paid ;  that  Johnson 
&  Johnson  received  from  and  converted  to  their  own  use  cotton 
raised  by  Lawson  in  Faulkner  County,  Ark.,  in  1884,  of  the  value 
of  $41.95,  and  corn  raised  by  Lawson  of  the  value  of  $21.46 ;  that 
they  took  the  cotton  and  corn  sued  for  here  in  payment  of  supplies 
furnished  Lawson,  after  they  had  been  fully  paid  all  their  rent  for 
1884;  that  the  property  so  converted  w^as  demanded  of  them  by 
W.  H.  Grissard  before  suit,  and  that  they  refused  to  deliver  it. 

The  only  question  necessary  to  consider,  and  the  only  one  made 
by  appellant's  counsel  here,  is,  is  the  description  in  the  mortgage 
of  the  property  in  controversy  sufficient?  The  appellants  in  the 
court  below  asked  the  court  to  declare  the  mortgage  was  too  gen- 
eral, indefinite,  and  uncertain  in  the  description  of  the  property 
conveyed;  that  it  created  no  lien  against  an  innocent  purchaser 
for  value,  who  had  no  notice  of  it  except  constructive  notice  from 
its  registration;  that  under  the  facts  admitted  the  lien  of  appel- 
lants is  superior  to  the  lien  of  the  appellee ;  that  the  law  was  against 
the  plaintiff ;' and  that  the  defendants  were  entitled  to  judgment, — 
all  of  which  were  refused  by  the  court.  The  court,  of  its  own 
motion,  declared  "the  law  to  be  for  the  plaintiff,  and  that  his 
mortgage  constitutes  a  valid  lien  on  the  property  in  controversy, 
and  superior  to  the  claim  of  the  defendants."  To  the  refusal  to 
declare  the  law  as  asked  by  the  appellants,  and  to  the  declaration  of 
law  made  by  the  court  on  its  own  motion,  the  appellants  excepted 
at  the  time ;  made  a  motion  for  a  new  trial,  which  was  overruled ; 
and  appealed  to  this  court.  The  description  of  the  property  in  the 
mortgage  in  controversy  in  the  cause  is:  "All  my  crop  of  com, 
cotton,  or  other  produce  that  I  may  raise,  or  in  which  I  may  have 
in  any  manner  an  interest,  for  the  year  1884,  in  Faulkner  County, 
Arkansas."  The  only  question  raised  here  is,  is  the  description  so 
general  and  indefinite  as  to  avoid  the  mortgage  as  to  third  parties? 
"We  have  not  been  able  to  find  that  the  precise  question  as  to  the 
sufficiency  of  a  description  so  general  and  indefinite  has  been  deter- 
mined in  this  court.  Counsel  for  appellants  contends  that  "a  chattel 
mortgage  ought  not  to  be  a  drag-net,  covering  a  whole  county,  in 


Transfer  of  Property  by  Act  of  the  Parties         305 

an}'  such  general  terms,"  as  was  said  in  Muir  v.  Blake,  11  N.  "W. 
Eep.  621,  by  the  Supreme  Court  of  Iowa,  in  which  a  description  in 
a  mortgage  of  "all  the  crops  raised  by  me  in  any  part  of  Jones 
county  for  the  term  of  three  years"  was  held  too  indefinite  and 
uncertain  to  charge  third  persons  with  notice  of  the  mortgage. 
"While  both  of  these  descriptions  are  yery  general,  it  will  be  noticed 
that  the  former  is  not  so  uncertain  and  indefinite  as  the  latter, 
which  was  sought  to  be  made  to  cover  crops  for  three  years.  In 
Ellis  V.  Martin,  60  Ala.  394,  which  was  attachment  for  rent  levied 
upon  three  bales  of  cotton  claimed  by  a  third  party,  and  in  which 
an  issue  was  formed  to  try  the  right  of  property  in  the  cotton,  the 
plaintiff  ofl'ered  in  evidence  a  mortgage  or  lien  note,  over  the  objec- 
tion of  the  claimant,  based  on  the  ground  "that  the  .said  instrument 
contained  no  sufficiently  certain  description  of  the  property  or  crop 
alleged  to  be  covered  or  described,  and  could  not  lawfully  be 
explained  by  parol  evidence,"  The  court  overruled  the  objection, 
and  admitted  said  deed  as  evidence,  with  proof  that  the  cotton  was 
part  of  the  crop  raised  by  said  Ellis  on  said  place  [named  in  the 
mortgage]  in  1875.  The  description  was  "my  entire  crop  of  cotton 
and  corn  of  the  present  year,"  without  any  other  descriptive  words. 
The  Supreme  Court  of  Alabama,  by  Brickell,  C.  J.,  said  in  this 
case :  * '  The  description  of  the  thing  conveyed  in  the  mortgage  is 
veiy  general  and  indefinite,  but  it  is  capable  of  being  rendered  cer- 
tain by  evidence  showing  the  lands  cultivated  by  the  mortgagor  in 
1875,  and  the  quantity  of  corn  and  cotton  raised  thereon.  Gener- 
ality and  indefiniteness  of  description  will  not  avoid  a  conveyance." 
It  is  uncertainty  that  will  not  be  removed  when  the  conveyance  is 
read  in  the  light  of  the  circumstances  surrounding  the  parties  at  the 
time  it  was  entered  into,  and  their  manifest  design  is  considered, 
that  will  render  a  conveyance  void.  *  *  *  In  Varnum  v.  State, 
upon  indictment  for  removing  mortgaged  property  (78  Ala.  28), 
it  was  held  that,  when  a  mortgage  conveys  the  "entire  crop"  of  the 
mortgagor  of  every  description  raised  by  him,  or  caused  to  be  raised 
by  him,  annually,  till  a  certain  debt  is  paid,  the  uncertainty  as  to 
what  the  mortgage  covers  can  be  removed  by  parol  evidence.  In 
Smith  v.  Fields,  79  Ala.  335,  it  was  held  that  a  mortgage  of  "my 
entire  crop  of  cotton  and  corn"  is  not  void  for  indefiniteness  and 
uncertainty,  but  the  descriptive  words  may  be  made  definite  by 
parol  testimony,  showing  that  the  parties  had  reference  to  the  crop 
to  be  raised  by  the  mortgagor  on  the  plantation  in  the  county,  which 
he  was  then  cultivating."    "The  description  of  the  property  in  the 

C.  P.  P.— 20 


306  Cases  on  Personal  Property 

mortgage,  though  general,  is  sufficient  to  put  on  inquiry,  and  the 
defendant  purchasing  from  the  mortgagor  was  bound  to  ascertain 
whether  the  cotton  he  bought  was  the  same  covered  by  the  mort- 
gage."    *     ''     '■' 

The  description  of  the  property  mortgaged  in  the  case  at  bar, 
and  in  controversy  in  this  cause,  "all  my  crop  of  corn  and  cotton 
for  the  year  1884,  in  Faulkner  county,  Arkansas,"  is  not  so  in- 
definite and  uncertain  that  it  could  not  be  made  certain  by  extrinsic 
evidence.  The  record  of  the  mortgage  was  constructive  notice,  and 
all  persons  purchasing  any  of  the  crop  of  the  mortgagor  in  the 
county  of  Faulkner,  for  the  year  1884,  were  bound  to  inquire 
whether  it  was  covered  by  the  mortgage  to  Grissard. 

Affirmed.^ 


WILLEY  V.  SNYDER. 
34  Mich.  59.     1876. 
The  facts  are  stated  in  the  opinion. 

CooLEY,  Ch.  J. — An  able  and  ingenious  argument  was  made  in 
this  case  to  convince  us  that  a  description  of  property  in  a  chattel 
mortgage  as  "One  Durm  bull,  known  as  the  Grinnalls  bull, — said 
bull  is  four  years  old  and  weighs  about  2,400  pounds, ' '  was  so  vague 
and  indefinite  as  to  prevent  the  mortgage,  when  duly  filed,  becoming 
constinictive  notice  to  a  subsequent  purchaser  of  the  bull  from  the 
mortgagor.  The  position  of  the  plaintifi'  is  perhaps  sufficiently 
shown  by  the  instruction  which  he  requested  in  the  court  below ; 
namely,  "that  the  description  must  be  such  as  would  enable  a 
stranger,  with  the  mortgage,  to  select  the  property." 

It  was  shown  in  the  case  that  the  mortgagor  had  but  the  one  bull ; 
that  he  was  called  a  Durham,  and  was  Durham  blood  in  part,  and 
that  he  was  known  as  the  Grinnalls  bull.  It  would  seem  that  the 
supposed  stranger,  with  a  knowledge  of  these  facts  and  the  mortgage 
in  his  hand,  could  have  had  no  difficulty  in  selecting  the  property 
if  he  was  a  man  of  ordinary  intelligence.  It  ought  not  to  be  very 
difficult  to  select  one  when  there  is  only  one  to  select  from ;  especially 
when  certain  particulars  are  mentioned  in  which  the  animal  would 
differ  from  all  others  in  ease  the  number  had  been  greater. 

But  if  a  stranger  is  to  be  sent  out  to  select  property  mortgaged, 

8  See  Childs'  Personal  Property,  §201. 


Transfer  of  Property  by  Act  of  the  Parties  807 

with  no  other  means  of  identification  than  such  as  are  afforded  by 
the  written  description,  and  without  being  at  liberty  to  supplement 
that  information  by  such  as  can  be  gained  in  the  mortgagor's  neigh- 
borhood by  inquiry  of  those  who  know  what  property  the  mortgagor 
was  possessed  of  which  would  answer  the  description  in  the  instru- 
ment when  it  was  given,  and  by  possessing  himself  of  such  other 
circumstances  as  persons  usually  avail  themselves  of  in  applying 
written  descriptions  to  the  things  intended,  it  is  much  to  be  feared 
that  the  stranger  would  be  so  often  at  fault  that  chattel  mortgages, 
if  their  validity  depended  upon  his  success  in  identifying  the 
propert}^,  would  seldom  be  of  much  value  as  securities. 

Wjitten  descriptions  of  property  are  to  be  interpreted  in  the 
light  of  the  facts  known  to  and  in  the  minds  of  the  parties  at  the 
time.  They  are  not  prepared  for  strangers,  but  for  those  they  are 
to  affect;  the  parties  and  their  privies.  A  subsequent  purchaser 
or  mortgagor  is  supposed  to  acquire  a  knowledge  of  all  the  facts, 
so  far  as  may  be  needful  to  his  protection,  and  he  purchases  in 
view  of  that  knowledge.  If  he  purchases  a  bull  known  in  the  neigh- 
borhood by  a  particular  name,  he  is  chargeable  with  notice  of  that 
fact.  A  mortgage  of  the  bull  by  that  name,  if  duly  filed,  would 
be  as  good  against  him  as  against  the  man  who  gave  it.  It  would 
be  a  singular  defense  to  be  set  up  by  him  to  the  mortgage,  that 
being  a  stranger,  he  discovered  no  such  name  on  or  about  the  bull, 
and  therefore  could  not  in  fairness  be  bound  by  a  mortgage  which 
undertook  to  identify  the  animal  by  name.  Descriptions  do  not 
identify  of  themselves;  they  only  furnish  the  means  of  identifica- 
tion. They  give  us  certain  marks  or  characteristics, — perhaps  his- 
torical data  or  incidents, — by  the  aid  of  which  we  may  single  out 
the  thing  intended  from  all  others;  not  by  the  description  alone, 
but  by  that  explained  and  applied.  Even  lands  are  not  identified 
by  description  until  we  place  ourselves  in  the  position  of  the  parties 
by  whom  the  description  has  been  prepared,  and  read  it  with  the 
knowledge  of  the  subject  matter  which  they  had  at  the  time. 

We  have  been  unable  to  discover  that  the  plaintiff  in  error  was 
wronged  by  any  rulings  in  the  court  below,  and  the  judgment  must 
be  affirmed,  with  costs. 

The  other  Justices  concurred.^ 

«See  Childs'  Personal  Property,  §201. 


308  Cases  on  Personal  Property 

Delivery. 
GARNER  V.  WRIGHT. 
52  Arh.  385,  12  S.  W.  785,  6  L.  B.  A.  715.     1890. 
The  facts  are  stated  in  the  opinion. 

Hemingway,  J. — The  appellant,  Garner,  and  one  Brown,  white 
men  and  citizens  of  the  United  States,  resided  in  the  Indian  Terri- 
tory. On  the  19th  of  January,  1886,  Brown  there  executed  a  mort- 
gage to  Garner,  whereby  he  conveyed  to  him  certain  chattels,  includ- 
ing the  horse  and  Vv^agon  in  controversy,  as  security  for  a  debt. 
The  mortgage  provided  that  Garner  should  have  possession  and 
control  of  the  mortgaged  chattels.  They  were  accordingly  delivered 
to  him,  and  remained  in  his  sole  possession  for  more  than  a  month, 
when  Brown  borrowed  them  to  use  in  hauling  wood.  He  used  them 
during  10  days,  but  at  night  returned  them  to  Garner's  barn.  On 
the  9th  of  April  following.  Brown  borrowed  them  to  make  a  trip  to 
Ft.  Smith,  and  after  his  arrival  there  they  were  seized  under  an 
attachment  againiit  his  property.  Garner  appeared  in  the  attach- 
ment suit,  and  filed  an  interplea,  claiming  them  under  his  mortgage. 
There  was  judgment  against  him  on  the  interplea,  and  he  appealed. 

In  determining  the  merits  of  his  claim,  it  is  essential  to  know  by 
what  law  the  validity  of  the  mortgage  is  to  be  determined.  As  a 
rule,  when  rights  arise  in  a  particular  country,  they  are  to  be  deter- 
mined by  the  laws  of  that  country,  and  the  party  who  would  avail 
himself  of  them  should  prove  them.  The  mortgage  in  controversy  was 
executed  in  the  Indian  Territory.  No  proof  was  offered  of  the  laws 
in  force  there  applicable  to  the  matter,  but  it  was  agreed  between 
the  parties  that  there  was  no  local  Indian  law  that  was  perti- 
nent. This  absence  of  proof  cannot  be  supplied  by  presumption.  In 
similar  cases  the  courts  of  this  state  will  generally  presume  the  com- 
mon law  to  be  in  force  in  another  state.  Cox  v.  Morrow,  14  Ark.  603 ; 
Thorn  v.  Weatherly,  50  Ark.  243,  7  S.  W.  Rep.  33.  But  this  pre- 
sumption is  indulged  as  to  those  states  only  that  have  taken  the  com- 
mon law  as  a  basis  of  their  jurisprudence.  Such  a  presumption  would 
not  be  indulged  as  to  the  laws  of  the  state  of  Louisiana  or  Texas, 
because  we  know  that  their  jurisprudence  is  founded  upon  a  differ- 
ent system.  The  same  reason  forbids  such  a  presumption  as  to  the 
laws  of  the  Indian  Territory,  for  we  know  that  no  system  of  laws  has 
been  adopted  there.   But  property  rights  are  asserted  there,  and  their 


Transfer  of  Property  by  Act  of  the  Parties         309 

existence  universally  recognized.  They  do  not  depend  upon  the 
uncertain  tenure  of  possession,  but  rest  upon  a  more  substantial 
basis.  As  such  rights  are  respected  there,  they  should  be  enforced 
when  they  become  involved  in  the  courts  of  this  state.  There  is  no 
federal  law  on  the  subject.  We  have  no  proof  of,  and  can  indulge 
no  presumption  as  to,  the  local  laws  in  force  there.  As  the  parties 
have  invoked  the  aid  of  our  courts,  Ave  must  therefore  apply  our 
own  law,  and  administer  justice  according  to  its  principles.  Such 
we  understand  to  be  the  practice  of  the  Supreme  Court  of  the  United 
States.    The  Scotland,  105  U.  S.  24. 

Under  our  law,  if  a  mortgagee  took  possession  of  the  mortgaged 
chattels  before  any  other  right  or  lien  attaches,  his  title  under  the 
mortgage  is  good  against  ever}body,  if  it  was  previously  valid 
between  the  parties,  although  it  be  not  acknowledged  and  recorded. 
The  delivery  cures  all  such  defects.  Jones,  Chat.  Mortg.  §  178,  and 
cases  cited ;  Applewhite  v.  ]\Iill  Co.,  49  Ark.  279,  5  S.  W.  Rep.  292 ; 
Cameron  v.  Marvin,  26  Kan.  625 ;  Hutton  v.  Arnett,  51  111.  198. 
While  the  mortgaged  chattels  are  in  the  custody  of  the  mortgagee, 
he  may  lend  or  hire  them,  and  they  continue  in  his  possession  con- 
structively ;  and  there  is  nothing  in  the  relation  which  he  sustains 
to  the  mortgagor  tliat  forbids  to  him  the  offices  of  ordinary  kind- 
ness or  good  neighborhood.  Therefore  the  mortgagee  may  lend  the 
mortgaged  chattels  to  the  mortgagor  for  occasional  temporary  use, 
without  prejudice  to  his  security.  In  a  case  very  similar  to  this, 
the  Supreme  Court  of  Vermont  so  ruled.  Farnsworth  v.  Shepard, 
6  Vt.  521.  The  learned  judge  of  the  Circuit  Court  held  that  appel- 
lant 's  mortgage  was  void  for  want  of  filing  and  record ;  but  it  fol- 
lows from  the  principles  herein  announced  that  he  was  mistaken  in 
this.  If  the  transactions  of  delivery  and  loan  were  had  bona  fide, 
the  mortgage  should  be  sustained.  The  judgment  is  reversed,  and 
the  cause  remanded.'^ 


Filing. 

BROWN  V.  BRABB. 

67  Mich.  17,  31  N.  W.  403.     1887. 

The  facts  are  stated  in  the  opinion. 

Champlin,  J. — Complainant  files  a  bill  in  Midland  circuit  setting 
forth   that,   January   14,   1884,   John  J.   Ryan  and   Ethelbert  J. 
TSee  Childs'  Personal  Property,  §202. 


310  Cases  on  Personal  Property 

Brewster,  of  Midland,  were  doing  business  as  John  J.  Ryan  &  Co. ; 
that  on  that  date  they  made  an  assignment  to  complainant,  for  the 
benefit  of  their  creditors,  of  all  of  their  property  and  rights  not 
exempt  from  execution,  without  preference;  that  complainant 
accepted  the  trust,  and  qualified  as  such  assignee ;  that  he  proceeded 
to  carry  out  the  trust  as  such  assignee ;  that  January  4th,  without 
his  knowledge  or  the  knowledge  or  consent  of  Brewster,  Ryan,  in 
the  firm  name,  gave  a  chattel  mortgage  to  defendant  Brabb  for 
$1,928.67,  covering  20  buggies,  and  with  the  usual  conditions ;  that 
the  mortgage  was  given  to  take  up  certain  notes  previously  given, 
and  that  they  never  were  given  up ;  that  the  mortgaged  property  was 
left  in  the  possession  of  Ryan  &  Co. ;  that  when  the  mortgage  was 
given  it  was  agreed  between  Ryan  and  Brabb  that  the  mortgage 
should  be  left  with  the  township  clerk,  with  instructions  not  to  file 
unless  some  other  mortgage  on  the  same  property  should  be  pre- 
sented for  filing,  and  that  the  clerk  was  so  in.structed ;  that,  January 
21st,  Brabb  caused  said  mortgage  to  be  filed  in  the  township  clerk's 
office ;  that  Brabb  demanded  the  property  covered  by  the  mortgage 
of  complainant,  which  was  refused,  and  that  Brabb  still  claims 
property  in  said  mortgage ;  that  he  claims  said  mortgage  to  be  void 
as  to  him  and  the  creditors  of  Ryan  &  Co. ;  that  he  believed  Brabb 
would  surrender  said  mortgage,  or  test  its  validity,  until  Brabb 
informed  him  that  he  would  not  discharge  it,  but  insist  upon  the 
lien ;  that  the  value  is  over  $100 ;  that  he  has  converted  the  assets 
into  money;  and  that  he  will  soon  be  ready  to  distribute  to  the 
creditors ;  that  Brabb  refuses  to  bring  suit,  and  insists  that  he  shall 
hold  complainant  liable  for  the  value  of  the  property  converted; 
that  he  cannot  distribute  until  the  mortgage  is  canceled ;  and  that 
Brabb  will  harass  and  annoy  him  by  suits  to  enforce  his  claim  at 
law.  The  prayer  for  relief  is  to  cancel  the  mortgage,  and  to  restrain 
defendant  from  bringing  suit,  of  any  name  or  nature,  against  com- 
plainant, to  recover  the  mortgage  debt,  and  for  general  relief. 
December  12,  1885,  complainant  amended  his  bill,  setting  up  that 
the  debts  of  Ryan  &  Co.  were  $17,000,  and  the  nominal  assets 
$18,000,  and  the  true  value  $5,000. 

The  defendant  answers,  and  admits  the  copartnership,  and 
denies  their  insolvency;  neither  admits  nor  denies  the  assignment, 
but  leaves  to  complainant  tO'  proof  of  the  same;  *  *  *  The 
defendant  claims  the  benefit  of  a  demurrer  the  same  as  though 
he  had  demurred  generally  and  specially. 

A  general  replication  was  filed,  and  hearing  in  open  court  de- 
manded.   The  cause  was  heard  April  30,  1886,  and  a  decree  made 


Transfer  of  Property  by  Act  of  the  Parties         311 

February  21,  1887,  granting  the  relief  prayed  for  by  complainant. 
Defendant  appeals. 

The  assignee  of  an  insolvent  debtor,  in  the  absence  of  fraud 
in  fact,  and  in  the  absence  of  statute  regulations,  takes  only  the 
debtor's  rights;  and  consequently  he  is  affected  with  claims,  liens, 
and  equities  vrhich  exist  as  againts  the  debtor,  were  he  asserting 
elaim  to  the  property.  It  was  long  ago  held  in  England  that 
assignees  in  bankruptcy  take  subject  to  whatever  equity  the  bank- 
rupt is  liable  to.  *  *  *  Such  is  the  prevailing  doctrine  in  this 
country.  *  *  *  It  is  held  in  this  state  that  the  assignee  for 
the  benefit  of  creditors  is  not  a  purchaser  in  good  faith.  The 
statute  relative  to  common-law  assignments  does  not  place  the 
assignee  upon  any  better  footing  than  the  creditors  he  represents. 

There  is  no  question,  in  this  case,  but  that  the  chattel  mortgage 
executed  by  John  J.  Ryan  &  Co.  was  given  in  good  faith,  to  secure 
an  honest  debt,  and  is  valid  between  the  parties.  The  important 
question  is  whether  a  chattel  mortgage  not  filed  pursuant  to  section 
6193,  How.  St.,  and  valid  between  the  parties,  is  equally  valid 
and  effective  as  against  the  assignee  for  the  benefit  of  creditors 
who  became  such  prior  to  thq.  date  of  the  mortgage.  In  Stewart 
v.  Piatt,  101  U.  S.  731,  739,  the  supreme  court  of  the  United  States, 
in  passing  upon  this  question,  say:  "Although  the  chattel  mort- 
gages, by  reason  of  the  failure  to  file  them  in  the  proper  place, 
were  void  as  against  judgment  creditors,  they  are  valid  and  effect- 
ive as  between  the  mortgagors  and  the  mortgagee.  Lane  v.  Lutz, 
40  N.  Y..  213 ;  Westcott  v.  Gunn,  4  Duer,  107 ;  Smith  v.  Acker,  23 
^^^end.  653.  *  *  *  The  assignee  can  assert,  in  behalf  of  the 
general  creditors,  no  claim  to  the  proceeds  of  the  sale  of  that 
property  which  the  bankrupts  themselves  could  not  have  asserted 
in  a  contest  exclusively  between  themselves  and  their  mortgagee." 
*     *    * 

The  assignee  is  not  a  creditor,  and,  as  he  docs  not  stand  in  the 
position  of  a  bona  fide  purchaser,  it  is  difficult  to  see  how  he  occu- 
pies any  vantage  ground  over  his  grantor,  except  as  he  represents 
the  rights  of  creditors  who  have  become  such  while  the  mortgage 
was  kept  off  from  the  files.  He  is  merely  a  trustee  to  collect  and 
convert  the  assets,  and  distribute  them  among  the  creditors.  *  *  * 
But  when  the  unrecorded  mortgage  is  bona  fide',  and  made  without 
fraudulent  intent,  it  is  valid  as  against  all  creditors  except  those 
who  have  become  such  while  it  remained  unrecorded.  The  other 
creditors  could  not  reach  it,  and  consequently  this  section  of  tlie 


312  Cases  on  Personal  Property 

statute  would  not  empower  the  assignee  to  recover  the  property- 
covered  by  it. 

The  difficulty  in  obtaining  a  clear  perception  of  the  rights  of 
the  assignee  has  arisen  in  the  mistaken  view  that  an  unrecorded 
mortgage  is  absolutely  void  as  to  all  creditors.  It  must  be  con- 
fessed that  the  language  used  in  many  decisions  has  led  to  this 
conclusion.  In  most  cases,  however,  if  not  in  all,  such  language 
has  been  applied  to  those  cases  where  the  creditors  referred  to 
were  those  who  became  such  while  the  mortgage  was  unrecorded. 
Thus,  in  Thompson  v.  Van  Vechten,  27  N.  Y.,  at  page  582,  Chief 
Justice  Denio  says:  "But  it  was  the  apparent,  and  I  think  the 
real  object  of  the  act,  to  prevent  the  setting  up  of  secret  mort- 
gages against  persons  who  might  deal  with  the  mortgagor,  on  the 
faith  that  his  property  was  not  thus  incumbered.  It  is  true,  the 
mortgage  cannot  be  legally  questioned  until  the  creditor  clothes 
himself  with  a  judgment  and  execution,  or  with  some  legal  proeess 
against  the  property;  for  creditors  cannot  interfere  with  the  prop- 
erty of  their  debtor  without  process.  But,  when  they  present  them- 
selves with  their  process,  they  may,  I  think,  go  back  to  the  origin 
of  their  debt,  and  show,  if  they  can,  that,  when  it  was  contracted, 
the  incumbrance  with  which  they  are  now  confronted  existed, 
and  was  kept  secret  by  being  withheld  from  the  proper  office." 
This  case  is  cited  in  brief  of  counsel  as  authority  to  show  that  an 
unfiled  mortgage  is  absolutely  void.  A  careful  reading  of  the 
case  would  have  shown  the  limitation  which,  when  the  facts  are 
disclosed,  govern  such  cases.  The  distinction  was  noticed  and 
the  principle  again  stated  in  Parshall  v.  Eggert,  54  N.  Y.  18,  22. 
It  was  there  said :  "If  the  instrument  under  which  the  plaintiffs 
claimed  were  a  chattel  mortgage,  it  would  be  void  as  against  the 
right  of  Hunter,  the  creditor,  whom  the  defendant,  the  sheriff, 
represents,  inasmuch  as  the  instrument  had  not  been  filed  when 
the  debt  of  Hunter  was  created.  For  this  position  the  case  of 
Thompson  v.  Van  Vechten,  27  N.  Y.  581,  is  a  direct  authority. 
It  was  there  held  that  the  time  when  the  creditor  became  such 
fixed  the  rights  of  the  parties ;  that  a  mortgage  not  then  filed  was 
void  as  to  him,  although  he  should  not  then  be  in  a  position  to  at 
once  attack  its  validity. ' '  The  distinction  was  again  clearly  made, 
and  the  doctrine  applied,  in  the  case  of  Stewart  v,  Beale,  7  Ilun. 
405,  and  affirmed  in  68  N.  Y.  629,  upon  the  opinions  written  in 
7  Hun.  405. 

The  case  of  Wilson  v.  Esten,  14  R.  I.  621,  is  in  many  of  its 
features  a  parallel  case  to  the  one  under  consideration.     There, 


Transfer  of  Property  by  Act  of  the  Parties         313 

a  mortgage  was  given  in  good  faith,  to  secure  a  loan  of  money 
to  enable  the  mortgagor  to  start  in  business.  It  -o^as  dated  May  5, 
1883,  but  was  not  recorded.  The  statute  declared  "that  no  mort- 
gage of  personal  property  hereafter  made  shall  be  valid  against 
any  other  person  than  the  parties  thereto,  unless  possession  of  the 
mortgaged  property  be  delivered  to  and  retained  by  the  mort- 
gagee, or  unless  the  said  mortgage  be  recorded,"  etc.  On  January 
14,  1884,  the  mortgagor  executed  a  voluntary  assignment  for  the 
benefit  of  his  creditors.  The  assignee  went  on  and  sold  the  prop- 
erty covered  by  the  mortgage,  and  paid  the  money  received  there- 
for into  the  registry  of  the  court,  where  it  was  claimed  by  the 
general  creditors,  and  also  by  the  mortgagee.  The  general  creditors 
claimed  that  the  neglect  to  have  the  mortgage  recorded  operated 
as  a  fraud  upon  them,  because,  in  consequence  of  the  neglect,  they 
gave  credit  to  the  mortgagor  which  otherwise  they  would  not  have 
given,  and  therefore  that  they  were  entitled  to  the  fund.  The 
court  found,  from  the  testimony,  that  the  neglect  to  record  the 
mortgage  was  unintentional,  and  that  the  lien  of  the  mortgage 
was  not  affected  by  the  failure  to  place  it  upon  record.  *  *  * 
And  the  court  held  that,  as  they  had  no  statute  in  that  state 
adding  to  the  ordinary  powers  of  a  voluntary  assignee,  the  mort- 
gagee was  entitled  to  the  money,  for  the  reason  that  the  mortgage 
was  good  between  the  parties,  and  the  assignee  occupied  no  better 
position  than  his  assignor. 

In  Shaw  v.  Glen,  37  N.  J.  Eq.  32,  the  firm  of  James  M.  Shaw 
&  Co.,  creditors  of  John  H.  Marrin,  took  from  him  on  October  17, 
1882,  a  chattel  mortgage  to  secure  a  debt  of  $375.  Mai-rin  resided 
at  Elizabeth,  in  Union  county,  but  the  mortgage  was,  two  days 
after  its  date,  by  mistake,  recorded  in  Essex  county,  where  the 
goods  were,  and  where  they  supposed  the  mortgagor  resided.  De- 
cember 28,  1882,  Marrin  executed  a  voluntary  assignment  to  defend- 
ant, Glenn,  for  the  equal  benefit  of  his  creditors,  under  the  assign- 
ment act.  The  assignee  at  once  took  possession  of  the  goods  then 
in  the  mortgagor's  hands.  Soon  after  that,  the  mortgagees  dis- 
covered their  mistake,  and  recorded  their  mortgage  in  Union  county. 
The  mortgage  was  given  in  good  faith  in  all  respects.  The  suit 
was  brought  to  foreclose  the  chattel  mortgage.  The  ease  is  so 
clearly  in  point  that  I  feel  justified  in  quoting  the  opinion  of  the 
chancellor.  He  says:  "Tlie  defendant,  the  assignee,  insists  that 
the  mortgage  is  void  as  to  him  because  it  was  not  recorded  in  Union 
county,  where  the  mortgagor  resided,  when  it  was  made,  before 
the  assignment  to  him  was  delivered.     The  act  provides    (P.  L. 


314  Cases  on  Personal  Property 

1881,  p.  227)  that  any  mortgage  or  conveyance  intended  to  operate 
as  a  mortgage  of  goods  and  chattels,  made  after  the  approval  of 
that  act,  which  shall  not  be  accompanied  by  an  immediate  deliv- 
ery, and  followed  by  an  actual  and  continued  change  of  possession 
of  the  things  mortgaged,  shall  be  absolutely  void  as  against  the 
creditors  of  the  mortgagor,  and  as  against  subsequent  purchasers 
and  mortgagees  in  good  faith,  unless  recorded  according  to  the 
directions  of  the  act,  which  are  that  it  be  recorded  in  the  clerk's 
or  register's  office  of  the  county  where  the  mortgagor  resides,  if 
he  resides  in  this  state,  but,  if  he  does  not  reside  in  this  state,  then 
it  is  to  be  recorded  in  the  clerk's  or  register's  office  of  the  county 
where  the  property  is  at  the  time  of  executing  the  mortgage.  But 
the  mortgage  was  clearly  valid,  as  against  the  mortgagor,  when 
he  made  the  assignment,  notwithstanding  it  had  not  been  recorded 
according  to  law  (Bank  v.  Sprague,  20  N.  J.  Eq.  13),  and  the 
assignee  took  his  title  to  the  property  subject  to  the  equities  to 
which  it  was  subject  in  the  hands  of  his  assignor.  Such  is  the 
rule  as  to  assignees  in  bankruptcy.  *  *  *  The  same  just  rule 
is  on  every  principle  obviously  applicable  to  assignees  under  the 
assignment  act.  The  failure  to  record  the  mortgage  does  not  ren- 
der it  invalid  as  against  the  defendant. "     *     *     * 

Turning  now  to  decided  cases  in  our  own  state,  we  observe  that 
many  cases  are  decided  merely  reciting  the  language  of  the  statute 
declaring  unfiled  chattel  mortgages  void  as  to  creditors,  without 
stating  whether  the  demands  of  the  creditors  existed  before  or 
after  the  date  of  the  mortgage.  Such  are  the  cases  of  Hurd  v. 
Brown,  37  Mich.  484  j  Haynes  v.  Leppig,  40  Mich.  602;  Cooper 
V.  Brock,  41  Mich.  488,  2  N.  W.  Eep.  660;  Putnam  v.  Reynolds, 
44  Mich.  113,  6  N.  W.  Rep.  198 ;  Wallen  v.  Rossman,  45  Mich.  333, 
7  N.  W.  Rep.  901. 

Commencing  with  Feary  v.  Cummings,  41  Mich.  376,  1  N.  W, 
Rep.  946,  which  precedes  in  date  some  of  the  cases  cited  above, 
the  court,  on  page  382  (1  N.  W.  Rep.  951),  say:  ''If  the  mort- 
gage was  made  to  hinder,  delay,  and  defraud  creditors,  or,  inas- 
much as  the  possession  was  not  altered,  if  it  was  not  put  on  file 
prior  to  plaintiffs  becoming  creditors,  it  was  invalid  as  against 
them;  the  law  being  that  those  who  become  creditors  while  the 
mortgage  is  not  filed  are  protected,  and  not  merely  those  who  obtain 
judgments  or  levy  attachments  before  the  filing.  Still,  no  one 
as  a  creditor  at  large  can  question  the  mortgage.  He  can  only 
do  that  by  means  of  some  process  or  proceeding  against  the  prop- 
erty." 


Tr^vnsfer  of  Property  by  Act  of  the  Parties         315 

In  Waite  v.  Mathews,  50  Mich.  392,  15  N.  AV.  Rep.  524,  the 
mortgages  were  filed  by  mistake  in  the  wrong  township.  The 
defendant  was  a  United  States  marshal,  and  represented  creditors 
whose  debts  were  older  than  the  mortgages.  The  chief  controversy 
was  upon  the  validity  of  the  mortgages  as  against  the  creditors 
whom  he  represented.  The  court  below  held  that  the  mortgages 
were  absolutely  void,  as  matter  of  law,  for  want  of  immediate 
possession.  This  court  said:  "The  other  question  was  substan- 
tially decided  in  Kohl  v.  Lynn,  34  ]\Iich.  360,  and  Fearey  v.  Cum- 
mings,  supra,  where  it  was  distinctly  intimated  that  in  order  to 
justify  the  application  of  the  statute  making  mortgages,  whether 
honest  f  r  not,  absolutely  void  for  vrant  of  filing  or  possession,  some 
act  must  be  done,  or  some  detriment  sustained,  during  the  interval. 
As  against  all  such  rights,  a  mortgage  without  such  possession 
or  filing,  is  absolutely,  and  not  merely  presumptively,  void ;  w^hile 
conveyances  not  by  way  of  mortgage  are  only  presumptively  void, 
under  such  circumstances  (citing  cases).  *  *  *  It  is  to  be 
remembered  that  filing  in  the  proper  office  is  equivalent,  for  sav- 
ing purposes,  to  actual  delivery  of  property;  and  this  is  often 
delayed  by  mistake  as  to  the  proper  office,  or  by  other  causes  involv- 
ing no  fraud.  Rules  so  stringent  as  to  destroy  honest  transac- 
tions by  such  omissions  must  have  a  reasonable  application.  The 
object  of  the  statute  is  to  prevent,  and  not  to  facilitate,  fraud; 
and  such  a  construction  as  was  adopted  below  would  not,  in  our 
opinion,  tend  to  good.  We  do  not  mean  to  decide  that  creditors 
who  have  been  actually  damnified  by  reliance  on  a  title  being 
clear  to  postpone  action  may  not  be  protected." 

In  Crippen  v.  Jacobson,  56  Mich.  386,  23  N.  W.  Rep.  56,  the 
mortgage  was  dated  IMay  9,  1884,  and  purposely  not  recorded 
until  May  15,  1884,  when  the  mortgagee  took  possession,  and  sold 
the  goods  mortgaged.  He  was  garnished  at  the  suit  of  creditors 
who  had  become  such  after  the  date  and  before  the  filing  of  the 
mortgage.  On  page  389,  I\Ir.  Justice  Campbell,  giving  tlie  opinion 
of  the  court,  said:  "We  have  heretofore  held  that  a  chattel  mort- 
gage, not  seasonably  filed,  is  void,  and  not  merely  presumptively 
void,  against  creditors  whose  rights  intervene  between  the  making 
and  filing.  *  *  *  When  the  debt  is  not  incurred  on  the  credit 
of  an  apparently  clear  title,  which  is  in  fact  covered  by  a  secret 
mortgage,  the  cases  cited  hold  that  there  is  no  right  to  complain 
of  a  subsequent  mortgage  without  taking  some  steps  which  puts 
the  creditor  on  a  different  legal  footing  than  that  of  a  quiescent 
party.    But  when  a  chattel  mortgage  exists,  and  is  concealed,  it  is, 


316  Cases  on  Personal  Property 

under  the  statute,  void,  for  the  reason  that  it  produces  a  false  ap- 
pearance of  entire  solvency,  when  in  fact  a  person  known  to  have 
mortgageid  his  stock  would  not  be  as  likely  to  get  credit  as  one 
who  had  given  no  such  security ;  and  those  who  deal  with  such  a 
debtor  are  liable  to  be  defrauded  by  appearances.  One  who  gives 
credit  under  such  circumstances  is  necessarily  exposed  to  that 
mischief,  and  the  law  has  removed  all  questions  of  suspicion  or 
notice  by  making  chattel  mortgages  void,  at  all  events,  against 
creditors  who  deal  with  a  debtor  so  situated.  Such  creditors  are 
directly  within  the  policy  of  the  statute." 

The  language  of  the  statute  contains  no  qualifications  as  to  the 
time  the  creditors  become  such.  It  does  not  say  that  the  unfiled 
mortgage  shall  be  void  as  to  subsequent  creditors,  and  this  has 
led  some  courts  to  hold  that  it  is  void  as  to  all  creditors.  But  a 
qualification  is  plainly  implied  from  the  language  of  the  whole 
section,  considered  with  reference  to  the  object  of  the  law.  It  must 
be  remembered  that  the  filing  is  designed  to  take  the  place  of  the 
delivery  of  the  property.  The  object  of  the  law  is  to  protect 
persons  dealing  upon  credit  with  one  who  is  in  possession  of  per- 
sonal property  as  the  ostensible  owner,  upon  the  reliance  of  such 
ownership,  from  secret  conveyances  by  which  he  is  enabled  to 
obtain  a  fictitious  credit  to  which  he  would  not  be  entitled  if  the 
true  situation  were  known.  Until  such  secret  conveyance  is  given, 
the  law  has  no  force.  There  is  nothing  for  its  provisions  to  oper- 
ate upon,  and  the  creditor  has  the  protection  of  the  ordinary  reme- 
dies for  the  enforcement  of  his  demands.  These  are  not  enlarged 
by  the  statute,  and  no  new  rights  or  remedies  are  conferred  upon 
the  creditor.  To  him  it  makes  no  difference  whether  the  debtor 
sells,  mortgages,  or  gives  away  his  property  either  secretly  or 
openly,  unless  it  is  done  with  intent  to  defraud  him.  His  remedy 
to  reach  the  property  conveyed  depends  entirely  upon  the  fraudu- 
lent character  and  intent  with  which  the  debtor  has  conveyed  it 
away.  As  to  him,  the  debtor  may  secure  another  person  by  deliv- 
ering the  property  to  him,  followed  by  a  continued  change  of  pos- 
session ;  in  which  case  he  would  not  be  likely  to  extend  any  further 
credit.  But  suppose,  instead,  his  debtor  gives  a  mortgage  in  good 
faith,  to  secure  an  honest  debt,  to  another  creditor,  or  for  a  present 
consideration,  for  a  loan  of  money.  There  is  nothing  in  the  quality 
of  these  acts  by  which  he  is  injured.  There  is  no  legal  wTong  done 
him.  Nor  is  there  any  legal  wrong  done  him  if  the  mortgage  is 
kept  secret  or  unfiled,  unless  he  has  thereby  been  led  to  extend 
new  credit  or  further  time,  or  been  led  to  abstain  from  taking 


Transfer  of  Property  by  Act  of  the  Parties         317 

action  to  collect  his  debt,  in  ignorance  of  the  real  situation.  It 
would  seem  unreasonable  that  without  extending  any  new  credit, 
or  otherwise  suffering  loss,  on  account  of  the  mortgage  being  kept 
from  the  files,  or  being  filed  in  a  wrong  place,  he  could  be  permitted 
to  say  that  the  mortgage  is  void  as  to  him,  and  that  he  would 
attach  the  property,  and  deprive  the  owner  of  his  security,  simply 
because  he  had  failed  to  comply  with  the  law.  He  has  not  been 
led  to  do  or  to  omit  doing  anything,  upon  the  strength  of  such 
non-compliance  with  the  statute.  And  herein  lies  the  difference 
between  his  case  and  the  innocent  purchaser  or  incumbrances  under 
the  recording  laws.  These  protect  subsequent  purchasers  and 
incumbrancers  in  good  faith,  who  have  been  led  to  rely  upon  the  rec- 
ord title.  To  my  mind,  the  reason  why  the  word  "subsequent"  was 
not  inserted  in  the  statute  before  the  word  "creditors"  was  to  meet 
just  that  contingency  where  an  existing  creditor  might  suffer 
injury  by  relying  upon  the  apparent  situation,  and  so  be  damnified 
by  postponing  action,  or  extending  time  of  credit  already  given, 
or,  possibly,  in  some  other  manner. 

The  complainant  has  not  shown  that  he  represents  any  creditor 
who  is  in  a  position  to  challenge  the  validity  of  defendant's  mort- 
gage or  claim  the  benefit  of  the  statute  as  avoiding  it,  because  of 
its  not  having  been  filed  seasonably.  AYe  must  therefore  deny  him 
the  relief  which  he  asks.  The  answer  prays  affirmative  relief,  and 
defendant  is  entitled  to  it  at  our  hands.    *     *    * 

The  decree  of  the  circuit  court  must  be  reversed,  and  a  decree 
entered  here  in  accordance  with  this  opinion.  The  taxable  costs 
of  both  parties  will  be  paid  by  the  assignee  out  of  the  other  funds 
in  his  hands. 

(The  other  justices  concurred.)^ 


Refiling. 

WADE  V.  STRACHAN. 

71  Mich.  459,  39  N.  W.  582.    1S88. 

The  facts  are  stated  in  the  opinion. 

Champlin,  J.— On  the  3d  day  of  September,  1886,  George  W. 
Baldwin,    Alida   Baldwin,    and    Leonard   J.    Baldwin   executed   a 

8  See  Chilfls '  Personal  Property,  §  203. 

As  to  validity  of  chattel  mortgage  when,  by  statute,  such  mortgage  is  re- 
quirprl  to  bo  recorded,  and  wlicn  such  mortgage  cannot  legally  be  filed  for 
record  until  it  has  been  properly  acknowledged,  see  McFadden  et  al.  v. 
Blocker  et  al.,  2  Tnd.  Tor.  260;  48  R.  W.  1048,  58  L.  R.  A.  878. 


318  Cases  on  Personal  Property 

chattel  mortgage  to  Dell  Wade  to  secure  a  note  which  was  given 
for  a  pre-existing  indebtedness  due   on  or  before   September  1, 
1887.     The  mortgage  was  duly  filed  on  September  4,  1886.     The 
property  mortgaged  was  described  therein  as  follows:     "Twenty 
acres  of  wheat  now  sown  and  growing  on  the  ground,  and  still 
to  be  sowTi,  on  the  (20)  twenty  acres,  this  present  season  of  1886, 
on  the  farm  of  George  W.  Baldwin,  on  section  twelve  (12),  in  the 
township  of  Orange,  Ionia  county,  Michigan ;  which  said  goods,  chat- 
tels, and  property  at  the  date  hereof  are  situate  at  the  farm  of  George 
W.  Baldwin,  in  the  township  of  Orange,  Ionia  county,  Michigan." 
George  W.  Baldwin,  being  indebted  to  John  D.  Strachan  in  the  sum 
of  $225,  on  the  22d  day  of  September,  1886,  gave  to  Strachan  the 
joint  and  several  note  of  himself  and  L.  J.  Baldwin,  due  on  or  before 
10  months  after  date,  and  to  secure  the  payment  thereof  gave  to 
Strachan  a  chattel  mortgage  executed  by  himself  and  L.  J.  Bald- 
win.    This  mortgage  was  duly  filed.     The  property  mortgaged 
was  described  as  follows:    "Fifty  (50)  acres  of  wheat  now  growing 
on  my  farm,  situate  and  being  on  the  south  half  (Vo)  of  the  south- 
east  quarter    (14)    of  section  number  twelve    (12),   in  township 
number  six  (6)  north,  of  range  six  (6)  west,  state  of  Michigan; 
the  same  being  the  farm  on  which  I  now  reside  with  my  family, 
and  owned  by  me,  in  the  township  of  Orange,  in  the  county  of 
Ionia."     The  whole  number  of  acres  of  wheat  sowed  by  Baldwin 
in  1886  was  35.     There  w^as  a  dispute  between  the  testimony  of 
the  witnesses  as  to  whether  any  wheat  had  been  sown  at  all  when 
the  mortgage  to  the  plaintiff  was  executed;  some  testifying  that 
none  at  all  had  been  sown,  and  others  that  one  day's  drilling  had 
been  done  upon  a  certain  field,  which  was  variou.sly  estimated  to 
contain  from  six  to  ten  acres.    The  wheat  was  harvested  by  Bald- 
win in  summer  of  1887,  and  placed  in  the  barn  unthreshed.     On 
September  5,   1887,   Wade  filed  with  the  township   clerk  of  the 
proper  township  the  statutory  affidavit  for  renewal  of  his  mort- 
gage.    On  the  16th  day  of  September,   1887,   defendant,   claim- 
ing  under   his   mortgage,    took  possession   of   the   wheat   in   the 
barn,    threshed    and    sold    it,    and    applied   the    proceeds    as    so 
much    paid    on    his    mortgage,    the    amount    realized    not    being 
sufficient  to  pay  his  mortgage  in  full.     The  declaration  alleged 
that  defendant  converted  to  his  own  use  the  property  of  the  plain- 
tiff; being  the  w^heat  grown  on  the  first  20  acres  of  land  sown  to 
wheat  by  George  W.  Baldwin  on  section  12,  in  the  township  of 
Orange,  in  the  fall  of  1886.     *     *     *     The  court  submitted  it  to 
the  jurv'  to  find  from  the  testimony  whether  any  wheat  had  actually 


Transfer  of  Property  by  Act  of  the  Parties  319 

been  sown  by  ]Mr.  Baldwin  on  the  section  named  in  the  mortgage 
at  the  time  it  was  executed,  and  he  instructed  them  that  if  none 
was  soviTL  at  that  time  the  plaintiff  could  not  recover,  and  that  in 
any  event  he  could  only  recover  for  the  wheat  that  was  actually 
sown  at  the  time  the  mortgage  was  executed,  and  he  excluded  from 
their  consideration  any  wheat  sown  on  the  20  acres  after  the  mort- 
gage was  executed.  The  defendant's  counsel  submitted  the  fol- 
lowing special  question  to  the  jury:  "If  any  wheat  was  sown 
before  the  mortgage  was  given  to  "Wade,  was  it  more  than  six 
acres?"  .To  which  the  jury  answered:  "There  was  more  than 
six  acres  sown  at  the  time  the  mortgage  was  given  to  Wade." 
They  also  found  a  general  verdict  for  plaintiff. 

The  defendant  insists  that  the  mortgage  to  plaintiff  is  void  as  to 
him — First,  because  of  uncertainty  in  the  description  of  the  prop- 
erty mortgaged;  and,  second,  because  the  affidavit  was  not  filed 
until  after  the  expiration  of  a  year  from  the  time  the  mortgage 
was  filed.  As  above  intimated,  we  think  the  mortgage  indicates 
by  its  terms  very  plainly  that  it  was  intended  to  cover  the  first 
20  acres  of  wheat  which  Baldwin  should  sow  on  his  farm  on 
section  12.    *    *    * 

The  second  objection  is  based  upon  the  fact  that  plaintiff's  mort- 
gage was  not  renewed  by  the  filing  of  the  required  affidavit  within 
one  year  from  the  time  the  mortgage  was  filed.  The  mortgage 
was  filed  September  4th,  and  the  renewal  was  not  filed  until  the 
5th  of  September  of  the  year  following.  By  this  omission  the 
defendant  claims  the  mortgage  ceased  to  be  valid  as  against  his 
mortgage,  which  was  given  by  Baldwin  on  the  22d  day  of  Sep- 
tember, 1886,  and  was  filed  the  same  day.  Section  6196,  How. 
St.,  reads  as  follows:  "Every  such  mortgage  shall  cease  to  be 
valid,  as  against  the  creditors  of  the  person  making  the  same,  or 
subsequent  purchasers  or  mortgagees  in  good  faith,  after  the  expi- 
ration of  one  year  from  the  filing  of  the  same  or  a  copy  thereof, 
unless,  within  thirty  days  next  preceding  the  expiration  of  the 
year,  the  mortgagee,  his  agent  or  attorney,  shall  make  and  annex 
to  the  instrument  or  copy  on  file  as  aforesaid  an  affidavit,  setting 
forth  the  interest  which  the  mortgagee  has,  by  virtue  of  said 
mortgage,  in  the  property  therein  mentioned,  upon  which  affidavit 
the  township  or  city  clerk  shall  indorse  the  time  when  the  same 
was  filed ;  provided,  that  such  affidavit,  being  made  and  filed 
before  any  purchase  of  such  mortgaged  property  shall  be  made, 
or  other  mortgage  received  or  lien  obtained  thereon  in  good  faith, 
shall  be  as  valid  to  continue  in  effect  such  mortgage  as  if  the  same 


320  Cases  on  Personal  Property 

were  made  and  filed  within  the  period  above  named."  It  is  not 
claimed  by  defendant  that  he  acquired  any  lien,  or  became  a  pur- 
chaser or  mortgagee  in  good  faith,  after  the  4th  of  September, 
1887,  w^hich  was  Sunday,  and  Monday,  the  5th,  when  the  renewal 
was  filed.  The  effect  of  the  renewal  then  to  him  was  the  same 
as  if  the  affidavit  had  been  filed  within  30  days  before  the  expiration 
of  the  year,  and,  if  it  had  been  so  filed,  it  would  not  be  claimed 
that  it  had  ceased  to  be  valid  as  against  him.  It  was  held  in 
Wetherell  v.  Spencer,  3  Mich.  123,  that  a  second  mortgagee  of 
property,  where  the  first  was  duly  filed  at  the  time  the  second 
mortgage  was  taken,  is  not  a  mortgagee  in  good  faith.  The  court, 
speaking  by  Mr.  Justice  Douglass,  said:  "Now,  the  plaintiff  was 
a  subsequent  mortgagee  of  the  same  property;  but,  having  notice 
of  the  prior  incumbrance,  he  was  not  a  subsequent  mortgagee  in 
good  faith,  within  the  meaning  of  the  statute,  which  was  merely 
designed  to  protect  those  who  might  otherwise  be  injured  by  want 
of  notice."  The  learned  judge  then  refers  to  the  decisions  of  the 
court  of  the  state  of  New  York,  under  a  statute  w4iich  is  substan- 
tially like  our  own,  and  approves  of  the  opinion  in  Gregory  v. 
Thomas,  20  Wend.  17.  Later  decisions  in  that  state  support  the 
doctrine  laid  down  in  the  opinion  of  Lewis  v.  Palmer,  28  N,  Y. 
271 ;  Benjamin  v.  Railroad  Co.,  54  N.  Y.  675 ;  *  *  *.  The  lan- 
guage of  our  statute,  referring  to  subsequent  purchasers  and  mort- 
gagees in  good  faith,  refers  to  those  who  become  so  subsequently 
to  the  expiration  of  the  year,  and  before  the  renewal  affidavit  is 
filed.  A  person  who  takes  a  second  mortgage  within  the  year  is 
affected  with  notice  of  the  mortgage  on  file;  but  after  the  year 
has  expired,  and  there  has  been  no  renewal,  a  person  who  then 
takes  a  mortgage  is  not  affected  by  notice  created  by  the  filing  of 
the  first  mortgage.  The  office  and  effect  of  filing  as  notice  expires 
with  the  year,  and  remains  so  until  renewed  by  filing  the  affidavit, 
and  then,  by  force  of  the  proviso  as  to  all  persons  except  those 
acquiring  liens  in  good  faith,  or  purchasers  or  mortgagees  in  good 
faith  in  the  interim,  the  lien  of  the  mortgage  is  presumed  with 
the  like  force  and  effect  as  if  filed  prior  to  the  expiration  of  the 
year.  The  defendant  cites  the  case  of  Briggs  v.  ]\Iette,  42  JMich. 
12,  3  N.  W.  Rep.  231,  as  supporting  the  contrary  doctrine.  From 
the  opinion  of  Mr.  Justice  Graves  in  that  case  it  appears  that  the 
court  was  not  entirely  unanimous  in  the  views  expressed.  He  says  : 
"The  opinion  is  held  by  the  other  members  of  the  court  that  the 
reasoning  of  the  New  York  cases  is  not  apposite  or  agreeable  to 
the  view  which  has  prevailed  here,  not  only  with  the  business  pub- 


Transfer  of  Property  by  Act  of  the  Parties         321 

lie,  but  with  the  bench  and  bar."  I  suggest  that  the  view  of  the 
bench  is  best  voiced  from  the  decision  above  quoted  from  this 
court  in  the  ease  of  Wetherell  v.  Spencer,  which  had  then  been 
the  expression  of  what  the  law  was  in  this  state  for  nearly  30 
years.  The  case  of  Wetherell  v.  Spencer  was  not  referred  to  in 
Briggs  V.  Mette,  and,  so  far  as  the  latter  case  conflicts  with  the 
former,  I  think  the  latter  case  should  be  overruled.  See,  also, 
Manwaring  v.  Jenison,  61  Mich.  117,  27  N.  W.  Rep.  899.  The 
judgment  must  be  affirmed. 

Sherwood,  C.  J.,  and  Morse  and  Long,  J.J.,  concurred. 

Campbell,  J, — I  agree  with  all  the  doctrine  of  my  Brother 
Champlin,  except  as  to  what  he  says  of  Briggs  v.  Mette,  which 
w^as  decided  on  full  consideration,  and  I  think  properly  decided.^ 


Removal  of  Chattel  to  Another  State. 
NEWSUM  et  al.  v.  HOFFMAN  et  al. 
124  Tenn.  369,  137  8.  W.  490.    1911. 
The  facts  are  stated  in  the  opinion. 

Neil,  J. — The  bill  states  the  following  facts: 

In  January,  1910,  one  C.  R.  Goza,  conveyed  to  complainant  New- 
sum,  trustee  for  Self  &  Hawkins,  two  mules  to  secure  a  debt. 
All  of  these  persons  were  residents  of  Quitman  county,  Miss.,  and 
the  mules  were  also  there  when  the  trust  deed  was  executed.  This 
instrument  provided  that  the  mortgagor  should  retain  possesion 
of  the  property  until  default  made.  Default  was  made  in  the 
payment  of  the  debt,  and  after  that  time  Goza,  on  the  6th  day 
of  December,  1910,  without  the  knowledge  or  consent  of  the  trus- 
tee, or  of  the  beneficiaries  under  the  trust  deed,  conveyed  the  mules 
to  Memphis,  Tenn.,  and  sold  them  to  defendants  Hoffman  and 
AVright  the  next  day  thereafter.  This  removal  of  the  property 
from  the  state  of  Mississippi  to  the  state  of  Tennessee,  and  the 
sale  by  Goza,  was,  on  his  part,  for  the  purpose  of  defrauding 
Newsum  and  the  aforesaid  beneficiaries.     The  bill  does  not  allege 

»  See  Childs '  Personal  Property,  §  208. 
C.  P.  P.— 21 


322  Cases  on  Personal  Property 

that  Hoffman  and  Wright  had  any  actual  knowledge  of  Goza's 
fraudulent  purpose,  or  of  the  deed  of  trust  on  the  mules  recorded 
in  Quitman  county,  Mississippi.  The  prayer  of  the  bill  was  for 
judgment,  etc.  The  defendants  demurred,  making  the  point  that 
there  was  no  equity  in  the  bill,  because  it  failed  to  show  that  the 
trust  deed  was  registered  in  Tennessee,  or  that  tlie  defendants  had 
any  notice  thereof,  and  did  show  that  they  were  innocent  pur- 
chasers. The  chancellor  sustained  the  demurrer  and  dismissed 
the  bill.  On  appeal  to  the  Court  of  Civil  Appeals,  the  decree  of 
the  chancellor  was  affirmed.  Thereupon  a  petition  for  certiorari 
was  filed  in  this  court,  to  remove  the  cause  from  the  Court  of  Civil 
Appeals  and  to  have  it  retried  here. 

(1)  The  weight  of  authority  undoubtedly  is  that  when  a  chattel 
mortgage  is  executed  in  a  foreign  state,  where  the  property  then 
is,  and  where  the  mortgagor  resides,  aud  has  been  duly  recorded 
in  that  state,  pursuant  to  its  laws,  and  is  valid  under  the  laws  of 
that  state,  the  mortgagee,  under  the  rule  of  comity  between  states, 
must  be  held  to  have  the  better  right,  upon  the  subsequent  removal 
of  the  property  to  another  state,  as  against  a  levying  or  attaching 
creditor  of,  or  an  innocent  purchaser  from,  the  mortgagor,  in  such 
states  into  which  the  property  has  been  so  removed,  although  the 
mortgage  is  not  recorded  in  the  latter  state.  See  notes  to  Snider 
V.  Yates,  64  L.  R.  A.  353,  and  text  of  the  following  cases  and 
notes  thereto :  Shapard  v.  H>Ties,  104  Fed.  449,  45  C.  C.  A.  271, 
52  L.  R.  A.  675 ;  Nat.  Bank  of  Commerce  v.  Morris,  114  Mo.  255, 
21  S.  W.  511,  19  L.  R.  A.  463,  35  Am.  St.  Rep.  754;  Handley  v. 
Harris,  48  Kan.  606,  29  Pac.  1145,  17  L.  R.  A.  703,  30  Am.  St. 
Rep.  322 ;  Ord  National  Bank  v.  Massey,  48  Kan.  762,  30  Pac.  124, 
17  L.  R.  A.  127 ;  Hornthal  v.  Burwell,  109  N.  C.  10,  13  S.  E.  721, 
13  L.  R.  A.  740,  26  Am.  St.  Rep.  556;  Creelman  Lumber  Co.  v. 
Lesh,  73  Ark.  16,  83  S.  AV.  320,  3  Am.  &  Eng.  Ann.  Cas.  108; 
Walter  C.  Jones  v.  North  Pac.  Fish  &  Oil  Co.,  42  Wash.  332,  84 
Pac.  1122,  6  L.  R.  A.  (N.  S.)  940,  114  Am.  St.  Rep.  131.  This 
is  true,  although  the  mortgagor  is  permitted  to  retain  possession 
until  default,  under  the  terms  of  the  mortgage.  Many  states  have 
spoken  upon  the  question,  and,  so  far  as  we  have  been  able  to 
discover,  the  courts  of  only  three  of  them  have  rendered  adverse 
decisions — Pennsylvania,  Louisiana,  and  Michigan.  In  some  of  the 
eases  referred  to  it  is  held  that  the  foreign  mortgagee  waives  his 
priority  in  favor  of  incumbrances  put  upon  the  property  in  the 
state  to  which  it  has  been  removed,  or  as  to  purchases  made  therein, 
if  he  consented  to  such  removal,  or  having  knowledge  thereof,  did 


Transfer  of  Property  by  Act  of  the  Parties         323 

not,  within  a  reasonable  time  thereafter,  assert  his  rights.  AYalter 
C.  Jones  V.  North  Pac.  Fish  &  Oil  Co.,  supra,  and  the  following 
cases  cited  in  the  note  thereto :  Armitage-Hereschell  Co.  v.  Potter, 
93  111.  App.  602 ;  Kanaga  v.  Taylor,  7  Ohio  St.  134,  70  Am.  Dec. 
62;  Anderson  v.  Doak,  32  N.  C.  295;  National  Bank  v.  Morris, 
supra;  Greene  v.  Bentley,  52  C.  C.  A.  60,  114  Fed.  112.  See,  also. 
Bank  v.  Bauman,  87  Neb.  25,  126  N.  W.  654.  In  Creelman  Lum- 
ber Co.  V.  Lesh,  supra,  the  majority  of  the  court  declined  to  express 
an  opinion  on  this  subject;  but  "Wood,  C.  J.,  in  concurring  with 
the  majority,  gave  it  as  his  opinion  that  the  fact  of  consent  or 
nonconsent  by  the  mortgagee  should  be  held  immaterial. 

(2)  "We  are  of  the  opinion,  however,  that  the  point  is  material, 
and  that  the  grace  of  comity  should  not  be  extended  to  cases 
wherein  it  appears  that  the  mortgagee  consented  to  the  removal, 
since  in  such  cases  he  thereby  negligently  places  it  within  the 
power  of  the  mortgagor  to  deceive  and  defraud  innocent  people 
in  the  state  into  which  the  property  may  be  removed.  This  was 
one  of  the  grounds  on  which  the  court  decided  the  case  of  Snyder 
V.  Yates,  112  Tenn.  309,  79  S.  "W.  796,  64  L.  R.  A.  353,  105  Am. 
St.  Rep.  941.  In  that  case  it  appeared  that  the  mortgagor  had 
removed  the  property  from  Illinois  to  Tennessee,  and  entered  into 
business  with  it  as  a  part  of  his  manufacturing  establishment,  and 
that  the  mortgage  had  been  placed  of  record  in  this  state,  in  the 
county  in  which  the  factory  or  stave  mill  was  located,  but  not 
properly  acknowledged  for  registration  here.  From  these  facts 
we  inferred  that  the  property  had  been  removed  to  this  state  with 
the  consent  of  the  mortgagor.  Under  these  facts  the  case  was 
correctly  decided.  However,  we  think  it  should  be  limited  to  its 
facts.  The  view  expressed  in  that  case,  that  while  the  contract 
should  be  governed,  as  to  its  validity,  by  the  lox  loci  co'titractus, 
it  is  contrary  to  sound  policy  to  permit  the  laws  of  a  foreign  state 
to  control  in  respect  of  priority  of  lien  or  right ;  that  is  to  say, 
to  permit  foreign  statutes  regulating  the  filing  and  registration 
of  chattel  mortgages  to  operate  as  notice,  or  to  take  the  place  of 
the  common-law  rule  which  requires  the  mortgagee  of  chattels 
to  take  possession,  on  pain  of  suffering  a  subordination  of  his 
rights  to  creditors  of,  and  innocent  purchasers  from,  the  mort- 
gagor, is  supported  by  reasons  that  are  obvious  and  strong.  How- 
ever, on  further  consideration,  we  yield  to  the  great  weight  of 
authority  on  the  general  question,  with  the  qualification  concerning 
the  effect  of  the  consent  of  the  mortgagee  above  indicated.  It 
seems  a  churlish   and   ungracious  course,   if  not  an   example  of 


dM  Cases  on  Personal  Property 

improvident  judgment,  to  hold  out  against  the  generous  comity 
of  the  many  states  v/hich  recognize  the  rule  of  interstate  courtesy 
upon  this  subject.  We  are  the  more  easily  reconciled  to  our  with- 
drawal from  the  position  taken  in  the  case  of  Snyder  v.  Yates, 
since  our  present  view  is  in  accord  with  that  formerly  held  by  this 
court,  as  shown  in  Hughes  v.  Abston,  105  Tenn.  70,  58  S.  W.  296 ; 
Bank  v.  Hill,  Fontaine  &  Co.,  99  Tenn.  42,  41  South.  349 ;  Allen 
V.  Bain,  2  Head  101;  Beaumont  v.  Yeatman,  8  Humph.  542,  548; 
Gookin  v.  Graham,  5  Humph.  480;  and  Gait  v.  Dibrell,  10  Yerg, 
146,  152-155.  The  last  case  cited  recognizes  the  distinction  above 
laid  down  that,  if  the  property  be  removed  to  this  state  with  con- 
sent of  the  mortgagor,  it  becomes  subject  to  our  laws  and  must 
be  registered  here.  10  Yerg.  153,  154.  To  same  effect  is  Gookin 
V.  Graham.  Lally  v.  Holland,  1  Swan  396,  has  been  referred  to. 
We  do  not  think  that  case  is  sound,  in  so  far  as  it  holds  that  a 
mortgage  executed  in  a  foreign  state,  and  duly  recorded  there,  upon 
a  chattel  at  the  time  in  this  state,  and  continuing  in  this  state, 
confers  a  right  superior  to  that  of  an  innocent  purchaser  of  the 
property  by  purchase  made  in  this  state. 

On  the  grounds  stated,  the  petition  for  certiorari  must  be  granted, 
the  Court  of  Civil  Appeals  revereed,  the  demurrer  overruled,  and 
the  cause  remanded  for  answer  and  further  proceedings.^^ 


BOYDSON  V.  GOODRICH. 

49  Mich.  65,  12  N.  W.  913.    1882. 
The  facts  are  stated  in  the  opinion. 

Graves,  C.  J. — The  plaintiff  prosecuted  replevin  for  a  pair  of 
horses,  a  wagon  and  harness,  and  the  property  was  taken  on  the 
w'rit  and  delivered  to  him.  All  the  material  facts  were  expressly 
agreed  upon  and  the  value  of  the  property  with  interest  from  the 
time  of  caption  on  the  process  was  admitted  to  be  $433.  The 
defendant  announced  his  waiver  of  a  return  and  the  court  directed 
a  verdict  in  his  favor  for  that  amount.  The  leading  circumstances 
are  as  follows : 

In  May,  1874,  the  plaintiff  and  one  Benjamin  F.  Warren  were 
residents  of  the  state  of  Indiana  and  of  which  state  the  former 

10  See  Childs'  Personal  Property,  §§203,  207. 


Transfer  of  Property  by  Act  of  the  Parties         325 

has  continued  to  be  a  resident.  The  property  was  at  that  time 
owned  by  Warren  and  was  in  Indiana  and  he  mortgaged  it  there 
to  .the  plaintiff,  but  the  possession  was  left  unchanged.  The  plain- 
tiff however  caused  the  mortgage  to  be  recorded  according  to  the 
laws  of  that  state,  and  it  may  be  assumed  for  this  case  that  the 
effect  in  Indiana  was  the  same  as  results  here  from  the  filing  of  a 
domestic  mortgage. 

In  November  following  the  mortgagor  removed  the  property 
without  the  plaintiff's  knowledge  or  consent  to  this  state,  and 
shortly  afterwards  the  defendant  met  him  at  Kalamazoo.  He  had 
the  property  with  him  and  was  in  company  with  one  Augustine. 
The  defendant  resided  at  Big  Rapids  and  was  an  entire  stranger 
to  AVarren  and  his  companion.  They  informed  him  they  wished 
to  sell  the  property  and  offered  it  for  $98,  although  it  was  worth 
at  least  $300  and  defendant  knew  it.  The  defendant  asked  them 
where  the  property  was  from,  and  they  told  him  that  they  resided 
at  Warsaw  in  Indiana  and  had  brought  the  property  from  that 
place;  that  they  were  both  out  of  money  and  owed  a  bill  at  the 
American  House  in  Kalamazoo  and  desired  to  sell  to  obtain  money 
to  pay  the  bill  and  go  home.  In  reply  to  his  inquiry  they  stated 
that  there  was  no  incumbrance  on  the  property;  and  in  further 
explanation  of  their  necessities  and  their  willingness  to  sell  at  so 
low  a  price  they  said  that  they  started  from  Warsaw  to  the  lumber 
woods  of  North  Michigan  to  obtain  work  but  had  been  informed 
that  no  work  was  to  be  obtained  there  and  they  were  desirous 
to  return  home.  The  defendant  then  bought  the  property  and 
paid  $98  for  it. 

Warren  is  irresponsible. 

The  plaintiff  relies  on  his  mortgage  given  on  the  property  in 
Indiana,  and  the  defendant  claims  under  his  purchase  at  Kalama- 
zoo, and  the  case  presents  the  single  question  whether  the  mortgage 
right  is  entitled  to  prevail  here  over  the  defendant's  purchase. 
The  counsel  for  plaintiff  argues  that  the  rules  of  state  comity  are 
against  the  defendant  and  give  the  foreign  transaction  preference. 
But  the  law  seems  to  be  settled  otherwise  in  Montgomery  v.  Wight, 
8  ]\Iich.  143.  It  is  .suggested  that  the  point  was  not  there  necessary 
to  the  decision,  and  that  what  is  said  on  the  subject  is  a  dictum. 
The  case  came  up  on  questions  reserved,  and  the  point  was  among 
them,  and  was  deliberately  considered.  We  regard  the  ruling  as 
authority.  The  phiintiff  allowed  the  mortgagor  to  retain  possession 
and  to  appear  to  the  world  as  well  authorized  to  convey  an  unen- 
cumbered title,  and  no  means  of  information  were  provided   in 


326  Cases  on  Personal  Property 

this  state  to  impeacli  this  appearance.  The  defendant  met  him 
and  publicly  bought  the  property,  and  he  not  only  had  no  notice 
of  the  plaintiff's  mortgage  but  was  expressly  told  by  Warren  that 
no  encumbrance  existed.  He  paid  a  valuable  consideration  and 
nothing  was  wanting  to  give  him  the  rights  of  a  baiia  fide  pur- 
chaser. It  may  be  said  that  the  consideration  was  inadequate, 
and  in  one  sense  that  is  true.  The  price  was  very  far  below  the 
true  value.  But  the  buyer 's  right  in  such  cases  to  be  protected  does 
not  require  that  he  shall  have  paid  the  full  value.  The  right  to 
make  good  bargains  is  not  invaded.  It  is  the  making  of  dishonest 
ones  that  the  law  reprobates.  ''The  question  is  not  whether  the 
consideration  is  adequate,  but  whether  it  be  valuable."  Bassett 
V.  Nosworthy,  2  Lead.  Cas.  in  Eq.  1. 

The  facts  of  the  case  permitted  no  other  conclusion  than  that 
which  was  reached  by  the  circuit  judge,  and  I  think  the  judgment 
should  be  affirmed  with  costs. 

(The  other  justices  concurred.) ^^ 


Foreclosure. 

VAN  BRUNT  v.  WAKELEE. 

11  Mich.  177.     1863. 

[The  complainant,  Elizabeth  Van  Brunt,  gave  a  mortgage  on 
a  crop  of  wheat  then  growing  in  the  field.  The  mortgage  became 
due  on  August  1,  1861,  and  on  the  day  following,  the  defendant, 
to  whom  the  mortgage  had  been  assigned,  took  possession  of  the 
wheat,  under  foreclosure  proceedings,  but  did  not  remove  it  from 
the  complainant's  premises.  At  the  time  this  action  was  com- 
menced, the  wheat  was  stacked  on  the  complainant's  premises. 
Shortly  after  this  action  was  begun,  the  complainant  tendered  the 
defendant  the  amount  due  on  the  mortgage.  The  defendant  refused 
to  receive  it,  whereupon  the  complainant  filed  a  bill  to  redeem. 
Judgment  for  complainant  and  defendant  appealed.] 

Martin,  Ch.  J. — ^Without  going  into  any  extended  discussion  of 
the  respective  rights  of  a  mortgagor  and  mortgagee  of  chattels 
after  foreclosure,   it  is  very  clear  from  all  the  analogies  of  the 

11  See  Childs'  Personal  Property,  §§  203,  207. 


Transfer  of  Property  by  Act  of  the  Parties         327 

law,  and  upon  general  principles,  that  a  mortgagor  has  a  right 
to  redeem  at  any  time  before  foreclosure.  In  the  case  of  a  mort- 
gage of  chattels  this  can  only  be  done  by  a  reduction  of  the  prop- 
erty into  posssession,  or  by  a  sale  pursuant  to  the  power  contained 
in  the  instrument.  Neither  was  done  in  this  case.  The  assertion 
of  Wakelee  that  he  refused  the  tender,  and  that  he  should  take  the 
entire  wheat,  so  long  as  he  did  not  take  it,  was  no  foreclosure ;  and 
the  offer  to  pay  the  debt  as  alleged  in  the  bill  was  in  season,  and 
discharged  the  mortgage. 

The  decree  is  affirmed,  with  costs. 

The  other  justices  concurred. ^^ 


Liens. 

ClassificatioTi. 

THE  MENOMINIE. 

36  Fed.  197.     1888. 

The  facts  are  stated  in  the  opinion. 

Shiras,  J. — *  *  *  The  steamer  Menominie  was  formerly 
owned  by  the  Knapp,  Stout  &  Co.  Company,  a  corporation  organ- 
ized under  the  laws  of  the  state  of  Wisconsin,  but  doing  business 
also  in  the  state  of  Iowa,  in  which  state  part  of  the  company's 
officers  resided.  The  boat  was  enrolled  at  Dubuque,  Iowa.  Sub- 
sequently a  contract  for  the  sale  thereof  was  entered  into  between 
the  Knapp,  Stout  &  Co.  Company  and  the  Matt  Clark  Transpor- 
tation Company,  a  corporation  organized  under  the  laws  of  the 
state  of  Minnesota,  and  located  at  the  town  of  Stillwater.  By 
the  terms  of  the  contract  of  sale,  which  w-as  duly  recorded  in  the 
office  of  the  surveyor  of  customs  at  Dubuque,  Iowa,  the  title 
remained  in  the  Kjiapp,  Stout  &  Co.  Company  until  the  purchase 

12  See  Childs'  Personal  Property,  §214. 

At  common  law  a  tender  of  the  mortgage  debt  on  the  law  day  discharged 
the  property  from  the  incumbrance,  but  the  debt  remained  and  its  payment 
might  bo  enforced  by  an  action  at  law  against  the  mortgagor.  In  the  states 
where  chattel  mortgages  have  been  converted  into  mere  liens,  it  has  very  gen- 
erally been  held  that  a  tender  at  any  time  before  foreclosure  and  sale  has  the 
same  effect  as  a  tender  on  law  day  at  common  law.  Thomas  v.  Seattle  Brew- 
ing &  Malting  Co.  et  ah,  48  Wash.  560,  94  Pac.  116,  15  L.  R.  A.  (N.  S.,)  1164. 


328  Cases  on  Personal  Property 

price  was  fully  paid,  which  has  not  yet  been  done,  but  the  possession 
and  full  control  of  the  vessel  was  delivered  over  to  the  Matt  Clark 
Transportation  Company.  The  several  claims  of  the  seamen, 
material-men,  and  others,  now  in  controversy,  arose  after  the  deliv- 
ery of  the  boat  to  the  transportation  company,  and  while  it  was 
engaged  in  the  business  of  that  company.  The  master  finds,  under 
the  facts  shown  in  his  evidence,  that  the  boat  must  be  deemed 
to  have  been  the  property  of  the  transportation  company,  and 
its  home  port  to  have  been  in  the  state  of  Minnesota  at  the  time 
the  claims  of  the  several  libelants  herein  arose,  and  in  this  finding 
I  concur. 

It  further  appears  that  supplies  were  furnished  and  labor  done 
upon  this  vessel  at  its  home  port,  and  the  question  arises  whether 
the  creditors  have  a  lien  therefor  upon  the  vessel.  The  labor  and 
material  being  furnished  at  the  home  port,  a  maritime  lien  there- 
for does  not  arise.  The  Lottawanna,  21  Wall.  558;  The  Albany, 
4  Dill.  439.  If  a  lien  exists,  it  must  be  found  in  the  provisions  of 
the  state  statutes.  Chapter  83,  Gen.  St.  Minn.  1878,  enacts  that 
"every  boat  or  vessel  used  in  the  navigating  of  the  waters  of  this 
state  is  liable — First.  For  all  debts  contracted  by  the  master,  owner, 
agent,  or  assignee  thereof,  on  account  of  supplies  furnished  for  the 
use  of  such  boat  or  vessel,  on  account  of  work  done  or  service  ren- 
dered on  board  or  for  the  benefit  of  such  boat  or  vessel,  or  on  account 
of  labor  done  or  materials  furnished  by  mechanics,  tradesmen,  or 
others  in  building,  repairing,  fitting  out,  furnishing,  or  equipping 
the  same."  *  *  *  In  deciding  what  the  statute  as  originally 
passed  was  intended  to  provide  for,  we  have  the  right  to  consider 
it  as  the  legislature  enacted  it.  It  said  that  it  does  not  create 
a  lien  because  the  statute  does  not  so  expressly  declare;  that  is, 
it  does  not  declare  in  set  phrases  that  the  claims  named  in  the 
act  shall  be  liens.  Liens  are,  so  far  as  the  source  of  their  creation 
is  concerned,  divisible  into  common-law,  equitable,  maritime,  and 
statutory.  Originally,  by  the  common  law,  a  lien  consisted  merely 
in  the  right  to  retain  possession,  under  certain  circumstances,  of 
the  property  of  another,  until  some  debt  or  charge  was  paid. 
Equitable  liens  did  not  depend  upon  possession,  nor,  strictly  speak- 
ing, did  they  constitute  a  jus  in  re  or  a  jus  ad  rem,  but  more  prop- 
erly constituted  a  charge  upon  the  thing.  2  Story,  Eq.  Jur.  §  1215 ; 
Peck  v.  Jenness,  7  How.  612.  At  common  law,  though  ordinarily 
the  delivery  of  possession  by  the  one  entitled  to  a  lien  destroyed 
or  terminated  the  lien,  yet  by  contract  the  parties  might  agree  to 
continue  the  lien  after  delivery,  or,  in  other  words,  might  agree 


Transfer  of  Property  by  Act  of  the  Parties         329 

that  the  property,  after  deliveiy,  should  be  subject  to  be  taken 
and  sold  if  the  purchase  price  or  other  charge  thereon  was  not 
paid.  Gregory  v.  Norris,  96  U.  S.  619.  In  equity,  the  lien  con- 
sisted in  the  right  to  subject  the  property,  even  though  not  in  pos- 
session of  the  lienor,  to  the  payment  of  the  debt  or  claim,  as  a 
charge  upon  the  property;  and  a  maritime  lien  is  of  like  nature 
in  this  respect.  Thus,  in  the  case  of  The  Rock  Island  Bridge,  6 
Wall.  213,  it  is  said : 

"A  maritime  lien,  unlike  a  lien  at  common  law,  may,  in  many 
instances,  exist  without  possession  of  the  thing  upon  which  it  is 
asserted,  either  actual  or  constructive.  It  confers,  however,  upon 
its  holder  such  a  right  in  the  thing  that  he  may  subject  it  to  con- 
demnation and  sale  to  satisfy  his  claim  for  damages." 

Bouvier  defines  a  '4ien"  to  be  "a  hold  or  claim  which  one  has 
upon  the  property  of  another  as  a  security  for  some  debt  or 
charge."  When,  therefore,  a  statute  declares  that  under  certain 
circumstances  a  person  shall  have  a  lien  upon  a  certain  class  of 
property  for  a  debt  or  charge  due,  what  is  meant  is  that  the  person 
shall  have  the  right  to  hold  the  property  for,  or  subject  it  to,  the 
payment  of  the  claim  or  charge.  On  the  other  hand,  if  the  statute 
declares  that  the  person  shall  have  the  right,  under  the  given 
circumstances,  to  hold  certain  property  for,  or  subject  it  to,  the 
payment  of  a  certain  claim  or  charge,  this,  in  like  manner,  creates 
and  confers  a  lien,  although  the  word  "lien"  may  not  be  used 
in  the  statute.  It  is  the  right  to  hold  or  subject  the  property  to 
the  payment  of  the  claim  or  debt  that  constitutes  the  lien,  and 
the  mere  words  used  in  the  statute  are  immaterial,  so  long  as  the 
substantial  right  itself  is  created.  The  statute  passed  by  the  legis- 
lature of  Minnesota  declares  that  every  boat  or  vessel  used  in 
navigating  the  waters  of  this  state  is  liable  for  the  several  classes 
of  debts  or  claims  named  in  the  statute,  and  then  provides  the 
method  by  which  the  boat  may  be  seized  and  sold  for  the  payment 
of  the  claim  or  debt.  The  fact  that  the  legislature  did  not  use 
the  word  "lien"  in  the  statute  cannot  change  the  fact  that  the 
act  does  and  was  intended  to  make  the  classes  of  claims  therein 
named  charges  upon  the  boat  or  vessel,  and  to  subject  the  boat 
to  seizure  and  sale  for  the  payment  thereof;  and,  this  being  the 
very  essence  of  a  lien,  it  follows  that  the  act  does  create  a  lien  in 
favor  of  the  classes  of  claims  therein  enumerated.     *     *     * 

It  Is  further  urged  that  this  statute  touching  the  Hal)ility  of 
boats  and  ves.sels  has  been  abrogated  by  the  subsequent  statutes 


330  Cases  on  Personal  Property 

on  the  subject  of  mechanic's  liens.  Chapter  90,  Gen.  St.  1878, 
provides,  inter  alia,  that  "whoever  performs  labor  or  furnishes 
materials  or  machinery  for  erecting,  constructing,  altering,  or 
repairing  any  house,  mill,  manufactory,  or  other  building  or  appur- 
tenances, or  for  constructing,  altering,  or  repairing  any  boat,  ves- 
sel, or  other  water-craft,  by  virtue  of  a  contract  with  the  owner 
or  agent  thereof,  shall  have  a  lien  to  secure  the  payment  of  the 
same  upon  such  house,  mill,  manufactory,  or  other  building  and 
appurtenances,  and  upon  such  boat,  vessel,  or  other  water-craft," 
etc.  This  statute  does  not  expressly  repeal  the  act  touching  boats 
and  vessels,  but  it  is  claimed  that  it  is  inconsistent  therewith,  and 
therefore  repeals  it  by  implication.  *  *  *  The  mechanic's  lien 
law  by  its  terms  includes  labor  and  materials  expended  in  con- 
structing, altering,  or  repairing  boats  or  vessels,  and  is  therefore 
mainly,  if  not  wholly,  applicable  to  boats  in  the  process  of  con- 
struction, or  when  laid  up  for  repairs;  or,  in  other  words,  when 
the  same  are  not  upon  the  navigable  waters.  Furthermore,  the 
mechanic's  lien  law  does  not  apply  to  supplies  furnished  to  or 
labor  done  in  and  about  the  boat  in  the  navigating  the  same.  The 
one  applies  to  labor  done  or  materials  furnished  in  constructing 
the  boat  or  refitting  it  in  order  that  it  may  undertake  the  business 
of  navigating  the  waters  of  the  state,  while  the  other  deals  with 
supplies  furnished  or  labor  done  in  connection  with  the  navigation 
thereof ;  so  that  while  there  may  be  cases  arising  in  which  the  labor 
done  or  supplies  furnished  might  come  within  the  purview  of  either 
statute,  this  does  not  show  that  the  legislature  intended  to  abro- 
gate the  one  act  by  the  enactment  of  the  other.  The  two  statutes 
deal  with  the  property  when  in  widely  different  circumstances, 
and  there  is  no  repugnancy  or  inconsistency  between  the  provisions 
of  the  two  acts  of  such  a  marked  character  as  to  justify  the  con- 
clusion that  the  latter  statute  repeals  the  other.    *    *    * 

The  first  section  of  chapter  83  of  the  Statutes  of  Minnesota  being 
then  in  force,  it  follows  that  persons  who  have  furnished  supplies 
for  the  nse  of  the  boat,  or  have  done  work  or  rendered  services 
on  board  the  same  or  for  the  benefit  thereof,  or  have  done  labor 
or  furnished  materials  in  repairing,  fitting  out,  furnishing,  or 
equipping  the  same,  are  entitled  to  a  lien  for  the  sums  due  them, 
provided  proceedings  for  the  enforcement  of  the  lien  have  been 
brought  within  one  year  after  the  cause  of  action  accrued  to  them, — 
this  being  the  express  limitation  found  in  the  statute;  and  it  is 
applicable  to  proceedings  for  the  enforcement  of  such  statutory 


Transfer  of  Property  by  Act  of  the  Parties  331 

liens  in  the  United  States  courts  as  well  as  to  proceedings  in  the 
state  courts.    *    *    * 

*  *  *  As  the  ruling  herein  made  on  the  question  of  the  lien 
given  by  the  state  statute  will  require  a  restatement  of  the  accounts, 
the  case  will  be  sent  to  the  master  for  that  purpose.^^ 


Common-Law  Lien. 
FISHELL  V.  MORRIS. 
57  Conn.  547,  18  Atl.  717,  6  L.  R.  A.  82.     1889. 
The  facts  are  stated  in  the  opinion. 

Andrews,  Ch.  J. — The  plaintiff  brought  an  action  of  replevin 
against  the  defendant  for  a  horse,  a  wagon,  a  harness,  a  whip  and 
two  robes.  The  trial  court  rendered  judgment  that  he  retain  pos- 
session of  all  the  chattels  but  the  horse,  and  that  he  should  return 
the  horse  to  the  possession  of  the  defendant.  From  that  judgment 
the  plaintiff  appeals. 

The  defendant  is  a  livery-stable  keeper.  One  Bohan,  of  whom 
the  plaintiff  bought  all  of  the  property,  on  or  about  the  17th  day 
of  November,  1887,  he  then  being  the  owner,  made  a  special  con- 
tract with  the  defendant  to  keep  and  feed  the  horse  for  the  sum 
of  eighteen  dollars  a  month.  Bohan  owned  the  horse  up  to  Decem- 
ber 1,  1888.  During  all  that  time  the  defendant  continued  to  keep 
and  feed  the  horse  under  the  agreement,  Bohan  calling  for,  taking, 
temporarily  using  and  returning  the  horse  at  his  pleasure,  without 
objection  on  the  part  of  the  defendant  on  account  of  arrearages 
usually  due  for  the  keeping  of  the  horse.  The  plaintiff  bought  the 
horse  and  the  other  property  of  Bohan  on  the  said  1st  day  o£ 
December,  1888.  Previous  to  that  day  Bohan  had  advertised  the 
property  for  sale  and  had  requested  and  urged  the  plaintiff  to 
buy  the  same.  The  defendant  had  full  knowledge  of  such  intended 
sale  by  Bohan.  On  that  day  Bohan  was  justly  indebted  to  the 
defendant  in  the  .sum  of  .$48  for  the  keeping  and  feeding  of  the 
horse.  On  the  morning  of  that  day  Bohan  took  the  horse  and 
the  other  property  from  the  defendant's  .stable,  as  he  had  been 
accustomed  to  do,  with  the  knowledge  and  consent  of  the  defend- 
ant (although  it  did  not  appear  that  the  defendant  had  knowledge 
that  Bohan  intended  to  sell  the  property  on  that  day),  and  while 

13  See  Childs'  Personal  Property,  §  198. 


332  Cases  on  Personal  Property 

away  from  the  stable  again  applied  to  the  plaintiff  to  purchase 
the  same,  which  the  plaintiff  did,  and  took  all  the  chattels  into  his 
possession  and  paid  therefor  in  full.  The  plaintiff  used  the  horse 
and  wagon  in  his  own  business  for  a  short  time,  and  then,  at  thfe 
suggestion  of  and  in  company  with  Bohan,  drove  to  the  defendant 's 
stable  for  the  purpose  of  engaging  further  keeping  for  the  horse. 
Bohan  introduced  the  plaintiff  to  the  defendant,  informed  him  that 
he,  Bohan,  had  sold  the  horse  to  the  plaintiff,  and  said  he  thought 
the  plaintiff  would  like  to  board  the  horse  there,  and  named  $20 
per  month  as  the  price  to  be  paid  therefor.  The  defendant  received 
and  stabled  the  horse.  After  he  had  done  so  he  inquired  of  the 
plaintiff  if  he  had  paid  for  the  horse  and  the  other  property.  The 
plaintiff  replied  that  he  had  paid  in  full.  The  defendant  then  said 
to  the  plaintiff  that  he  had  a  claim  of  $48  on  the  horse  for  its  keep- 
ing and  feeding,  and  that  the  plaintiff  must  govern  himself  accord- 
ingly. The  plaintiff  said  he  should  want  to  take  the  horse  out 
the  next  day  to  use,  whereupon  the  defendant  said  the  horse  could 
not  be  taken  from  his  possession  till  the  claim  of  $48  was  paid. 
Afterwards  on  the  same  day  the  plaintiff  made  demand  on  the 
defendant  to  deliver  to  him  the  horse  and  the  other  articles,  which 
the  defendant  refused.  This  suit  was  then  brought.  The  plaintiff 
had  no  knowledge  at  the  time  he  bought  the  property  that  Bohan 
was  indebted  to  the  defendant,  and  there  was  no  claim  that  he 
acted  otherwise  than  in  good  faith. 

The  defendant  claimed  the  right  to  detain  the  horse  in  his  pos- 
session until  the  debt  of  $48  was  paid,  by  virtue  of  his  lien  thereon 
for  its  keeping  and  feeding.  The  plaintiff,  on  the  other  hand,  asked 
the  court  to  rule  that  the  lien  of  the  defendant  on  the  horse  for 
its  keeping  and  feeding  was  devested  when  the  horse  was  taken 
from  his  immediate  possession,  without  objection  on  his  part,  by 
the  owner  of  the  horse,  and  by  such  owner  sold  and  delivered  to 
the  plaintiff,  an  innocent  purchaser  for  value;  and  that  the  lien 
did  not  revive  when  the  horse  was  returned  to  the  defendant's 
stable  by  the  plantiff.  The  court  did  not  so  rule,  but  rendered 
judgment  for  the  return  of  the  horse  as  above  stated. 

A  lien  is  the  right  which  a  creditor  has  of  detaining  in  his  pos- 
session the  goods  of  his  debtor  until  the  debt  is  paid.  To  the  com- 
mon-law idea  of  a  lien  it  is  necessary  that  the  creditor  should  have 
the  actual  possession  of  the  goods  over  which  the  lien  is  claimed, 
and  that  the  debt  should  have  been  incurred  in  respect  to  the  very 
goods  detained.  As  possession  is  the  foundation  of  the  common- 
law  lien,  any  parting  with  the  possession  operates  as  a  waiver  or 


Transfer  op  Property  by  Act  of  the  Parties         333 

forfeiture  of  it.  ''A  lien  is  a  mere  right  to  retain  possession  of  a 
chattel,  which  right  is  immediately  lost  on  the  possession  being 
parted  with."  Cockburn,  Ch.  J.,  in  Donald  v.  Suckling,  L.  R.  1  Q. 
B.  612.  See  also  story  on  Bailments,  §311;  Case  of  an  Hostler, 
Yelv.  67,  note;  Finney  v.  Wells,  10  Conn.  115. 

It  is  admitted  by  the  defendant's  counsel  that  he  would  have 
no  right  of  lien  except  for  the  statute.  Gen.  Stat.  §  3047.  This 
statute  gives  a  lien  in  cases  where  the  common  law  does  not  give 
one.  ^Miller  v.  I\Iarston,  35  Me.  153 ;  Goodrich  v.  Willard,  7  Gray 
183;  Judson  v.  Etheridge,  1  Cromp.  &  M.  743;  Jackson  v.  Cum- 
mins, 5  Mees.  &  W.  342 ;  Parsons  v.  Gingell,  4  C.  B.  545. 

But  there  is  no  intimation  in  the  statute  that  it  uses  the  word 
"lien"  in  any  different  sense  from  that  which  it  has  in  the  common 
law.  On  the  contrary  the  statute  seems  to  use  that  word  in  its 
precise  common-law  meaning.  It  creates  a  lien  in  favor  of  the 
"keeper" — that  is,  the  one  in  possession — of  animals.  It  says  that 
the  animals,  naming  the  kind,  "shall  be  subject  to  a  lien  for  the 
price  of  such  keeping  in  favor  of  the  person  keeping  the  same  until 
such  debt  is  paid." 

This  is  the  exact  idea  of  the  common  law,  the  right  of  a  creditor 
to  detain  the  property  of  his  debtor  in  his  possession  till  the  debt 
is  paid. 

In  all  cases  where  statutes  have  created  any  right  of  security  on 
the  property  of  a  debtor  in  the  nature  of  a  lien,  not  depending  on 
possession,  they  have  provided  carefully  for  a  registration  of  the 
transaction. 

The  contract  between  Bohan  and  the  defendant,  as  interpreted 
by  their  usage,  was  such  that  Bohan  had  the  right  to  take  the  horse 
at  any  time  from  the  stable  for  the  purpose  of  using  it.  The  plain- 
tiff claims  that  a  livery-stable  keeper  who  holds  a  horse  at  the  con- 
stant disposal  of  the  owner  is  the  mere  servant  of  the  owner  and 
does  not  have  any  such  possession  as  would  invest  him  with  the  right 
of  lien.  We  do  not  decide  the  point.  On  the  finding  we  must 
assume  that  Bohan  rightfully  took  the  horse  from  the  defendant's 
stable  and  sold  it  to  the  plaintiff.  This  was  a  transaction  which 
devested  the  lien.  Whatever  right  the  defendant  might  have  had 
to  detain  the  horse  as  against  Bohan,  we  are  of  opinion  he  had  none 
against  the  plaintiff. 

There  is  error  in  the  judgment,  so  far  as  it  directs  a  return  of  the 
horse  to  the  defendant,  and  for  the  defendant  to  recover  cost,  and 
this  part  is  reversed. 

In  this  opinion  the  other  Judges  concurred. 


334  Cases  on  Personal,  Property 

DRUMMOND  CARRIAGE  CO.  v.  MILLS. 

54  Neb.  417,  74  N.  W.  766,  40  L.  B.  A.  761.    1898. 

Replevin  to  recover  possession  of  a  carriage. 
The  facts  are  stated  in  the  opinion. 

Harrison,  Ch.  J. — This,  an  action  of  replevin,  was  instituted  by 
defendant  in  error,  March  22,  1894,  before  a  justice  of  the  peace  in 
Douglas  County,  to  recover  the  possession  of  a  "Breton  Buggy," 
and  in  a  trial  he  was  given  judgment  for  the  relief  demanded.  An 
appeal  was  perfected  to  the  district  court,  wherein  the  defendant 
in  error  was  again  successful.  He  there  obtained  judgment  against 
the  carriage  company,  and  also  against  the  surety  on  the  appeal 
undertaking.  The  carriage  company  and  the  surety  on  the  appeal 
bond  present  the  case  to  this  court  for  review. 

*  *  *  The  trial  in  the  district  court  was  without  a  jury, 
and  on  an  agreed  statement  of  the  facts,  as  follows :  ' '  That  W.  P. 
Wilcox  was  on  and  prior  to  July  1,  1891,  a  physician  engaged  in 
the  actual  practice  of  his  profession  in  the  city  of  Omaha,  Nebraska. 
That  on  September  12,  1889,  said  Wilcox  purchased  a  physician's 
phaeton  or  carriage  from  the  defendant,  and  that  from  the  date  of 
its  purchase  until  on  or  about  the  13th  day  of  l\Iay,  1892,  the  said 
Dr.  Wilcox  used  the  said  carriage  in  his  professional  business  as 
a  physician  and  surgeon.  That  on  July  1,  1891,  said  Dr.  W.  P. 
Wilcox  made,  executed,  and  delivered,  for  a  valuable  consideration, 
being  money  actually  loaned,  his  certain  promissory  note  to  the 
plaintiff  for  $350,  due  one  year  after  date.  That  no  payments  have 
been  made  on  said  note,  and  the  same  is  due.  To  secure  said  note, 
the  said  Dr.  W.  P.  Wilcox  made  and  delivered  a  chattel  mortgage 
to  plaintiff  covering  the  said  physician's  phaeton  or  carriage,  a 
horse,  and  harness.  The  said  mortgage  was  filed  in  the  office  of  the 
county  clerk  of  Douglas  County,  Nebraska,  in  accordance  with  law, 
on  the  3d  day  of  August,  1891,  a  copy  of  which  is  hereto  attached 
and  made  a  part  of  this  stipulation,  marked  'Exhibit  A.'  The 
plaintiff  was  well  acquainted  with  the  buggy  in  controversy,  and 
knew  at  the  time  he  took  the  mortgage  that  it  was  used  by  Dr. 
Wilcox  in  his  business  as  a  physician.  *  *  *  The  plaintiff  was 
with  Dr.  Wilcox  at  the  office  of  the  Drummond  Carriage  Works, 
defendant,  at  one  time  previous  to  May,  1892,  after  his  mortgage 
was  given,  and  when  Dr.  Wilcox  ran  the  buggy  in  there  for  repairs, 
which  bill  of  repairs  was  paid  by  Dr.  Wilcox.    About  the  13th  of 


Traxsfee  of  Property  by  Act  of  the  Parties         335 

May,  1892,  said  Dr.  Wilcox  took  the  buggy  mentioned  in  the  mort- 
gage, and  in  eontrovers}^  herein,  to  the  defendant  for  repairs ;  and, 
pursuant  to  agreement  between  the  defendant  and  Dr.  Wilcox,  the 
buggy  was  to  be  repaired.  The  bill  for  the  same  agreed  upon  was 
$60,  to  be  paid  in  cash  when  the  work  was  done.  *  *  *  The 
repairs  done  on  the  buggy  were  reasonably  necessary  for  the  careful 
preservation  of  the  carriage.  *  *  *  About  the  1st  of  June, 
1892,  said  Dr.  W.  P.  Wilcox  left  the  city  of  Omaha  for  Colorado, 
to  be  gone  an  indefinite  period  of  time.  *  *  *  During  the  time 
of  said  Wilcox's  absence  from  the  city,  as  aforesaid,  the  plaintiff 
supposed  the  buggy  Avas  in  the  barn  of  the  father  of  said  Wilcox, 
and  did  not  know  different  until  about  the  21st  of  March,  1894, 
when  he  was  notified  by  said  Wilcox  that  the  said  buggy  was  in  the 
possession  of  the  defendant.  *  *  *  Immediately  after  said  noti- 
fication, plaintiff  demanded  possession  of  said  buggy  from  defend- 
ant, and,  upon  refusal  of  defendant  to  deliver  up  the  possession  of 
said  buggy  to  plaintiff',  plaintiff  commenced  this  cause  of  action. 
The  defendant  made  no  inquiries  of  Wilcox,  when  he  took  the 
buggy  to  its  place  of  business  for  repairs,  as  to  whether  the  buggy 
was  encumbered  or  not,  nor  did  the  said  Wilcox  say  anything  about 
it  to  the  defendant.  The  buggy  has  been  in  the  continuous  posses- 
sion of  the  defendant  from  the  spring  of  1892,  *  *  *  The  de- 
fendant, when  demand  was  made  on  it  for  the  possession  of  the 
buggy,  refused  to  deliver  the  same  to  the  plaintiff  until  its  bill  for 
repairs,  as  above  stated,  was  paid,  and  then  and  there  notified  the 
plaintiff  that  it  claimed  a  lien  upon  said  buggy  for  the  work  and 
labor  and  material  performed  and  used  in  repairing  said  buggy. 
The  value  of  the  buggy  was  $75  at  the  commencement  of  this  action. 
The  defendant,  and  all  the  officers  thereof  at  the  times  when  said 
repairs  were  agreed  upon  and  made,  had  no  actual  knowledge  of 
said  mortgage,  nor  were  they  aware  of  the  existence  of  such  a  mort- 
gage until  the  month  of  March,  1894." 

It  is  urged  by  counsel  for  plaintiff  in  error  that  it  had  a  lien,  by 
force  of  law,  on  the  buggy  for  the  amount  of  its  biU  of  charges  for 
repairing  the  buggy,  which  continued  so  long  as  it  retained  posses- 
sion of  the  buggy  under  a  claim  of  lien  for  such  services.  The 
principle  invoked  is:  If  property  is  delivered  to  a  person,  to  be 
by  his  skill  and  labor,  or  by  adding  thereto  property  of  his,  en- 
hanced in  value,  and  he  performs  the  labor  or  adds  his  own  prop- 
erty to  that  delivered,  and  thereby  increases  the  value  of  the  latter, 
he  may  retain  pos.session  of  it  until  paid  for  his  labor  or  materials. 
This  is  a  doctrine  of  the  common  law,  and  the  right  is  usually  de- 


336  Cases  on  Personal  Property 

nominated  a  '  *  common-law  lien, ' '  and  it  exists  under  a  state  of  facts 
such  as  we  have  just  detailed,  unless  there  is  a  contract  inconsistent 
with  such  lien,  or  some  modifying  circumstances  which  are  in  con- 
flict with  any  such  right,  or  disclose  an  intent  not  to  claim  the 
right.  "A  mechanic  of  any  kind  has  a  lien  upon  all  personal 
property,  for  manufacture  or  repairs,  while  it  remains  in  his  pos- 
session; *  *  *  a  carriage  maker,  for  repairs  upon  a  carriage." 
See  6  Wait,  Act.  &  Def.,  p.  149,  and  cases  cited.  Persons  have  by 
common  law  the  right  to  detain  goods  on  which  they  have  bestowed 
labor  until  the  reasonable  charges  therefor  are  paid.  2  Kent  Com., 
p.  635.  In  the  absence  of  specific  agreement,  if  a  party  has  be- 
stowed labor  and  skill  on  a  chattel  bailed  to  him  for  such  purpose, 
and  thereby  improved  it,  he  has  by  general  law  a  lien  on  it  for  the 
reasonable  value  of  his  labor,  or  the  right  to  retain  it  until  paid  for 
such  skill  and  labor.  Bevan  v.  "Waters,  3  Car.  &  P.  520 ;  Scarf e  v. 
Morgan,  4  Mees.  &  W.  270 ;  Lord  v.  Jones,  24  Me.  439,  41  Am.  Dec. 
391 ;  Grinnell  v.  Cook,  3  Hill  491,  38  Am.  Dec.  663.  This  right 
rests  on  principles  of  natural  equity  and  commercial  necessity.  2 
Kent  Com.,  p.  634.  No  lien  exists  at  common  law  for  the  agistment 
of  cattle  (Chapman  v.  Allen,  Cro.  Car.  271;  Jackson  v.  Cummins, 
5  Mees.  &  W.  342;  Wallace  v.  Woodgate,  1  Car.  &  P.  575)  ;  nor  in 
favor  of  one  to  whom  a  horse  has  been  delivered  to  be  stabled,  taken 
care  of,  fed,  and  kept  (Judson  v.  Etheridge,  1  Cromp.  &  M.  742). 
In  such  cases,  a  lien  for  the  charges  will  only  arise  by  virtue  of  a 
statute  or  special  agreement  in  the  nature  of  a  pledge.  *  *  * 
The  case  of  an  agistment  does  not  fall  within  that  principle,  inas- 
much as  the  agister  does  not  confer  any  additional  value  on  the 
article,  either  by  the  exertion  of  any  skill  of  his  own  or  indirectly, 
by  means  of  any  instrument  in  his  possession."  White  v.  Smith,  44 
N.  J.  L.  105,  43  Am.  Rep.  347 ;  Jackson  v.  Cummins,  5  Mees.  &  W. 
342. 

We  refer  to  the  agister's  lien  for  the  purposes  of  directing  atten- 
tion to  the  fact  that  it  is  not  a  lien  which  has  been  recognized  as 
arising  by  force  of  the  general  or  common  law,  or  as  having  any 
existence  at  common  law,  but  has  its  origin  in,  or  is  the  creature  of, 
statutory  provision,  and  that  the  reasoning  employed  and  rules 
announced  by  this  court  in  reference  to  agister's  liens  are  not  force- 
ful, or  applicable  herein  in  regard  to  the  lien  claimed.  *  *  * 
The  right  to  the  common  law  lien  would  exist  in  this  state  unless 
inconsistent,  without  statutory  law,  and  we  cannot  discover  wherein 
it  is  inconsistent  with,  or  has  been  abrogated  by,  statute;  hence 
must  determine  it  in  force. 


Transfer  op  Property  by  Act  of  the  Parties         337 

*  *  *  We  must  conclude  that  a  common  law  lien  existed  in 
favor  of  the  carriage  company  for  the  amount  due  it  for  the  repair 
of  the  buggy ;  and  it  remains  further  to  determine  whether  it  took 
precedence  of  the  lien  of  defendant  in  error's  chattel  mortgage.  The 
lien  of  the  mortgage  was  created  and  perfected  by  the  filing  pre- 
scribed by  law,  long  prior  to  tke  services,  etc.,  of  the  carriage  com- 
pany in  repairing  the  buggy,  and  there  is  no  dispute  in  regard  to 
the  time  of  attachment  of  either  lien. 

*  *  *  The  mortgage  provided,  in  terms,  that,  until  default 
by  the  mortgagor  in  the  performance  of  specified  conditions  or  until 
the  happening  of  certain  indicated  events,  he  should  keep  possession 
of  the  mortgaged  property,  and  one  of  the  enumerated  events,  by 
the  occurrence  of  which  the  mortgagee  should,  at  his  option,  be 
entitled  to  take  possession  thereof,  was  this:  "If  the  said  party 
of  the  first  part  [the  mortgagor]  shall  so  negligently  or  improperly 
use  or  care  for  said  propertj^  as  to  subject  the  same  to  probable  loss 
or  material  depreciation  of  the  value  thereof, ' ' — from  which  it  seems 
probable  that  it  was  in  contemplation  of  the  parties  that  the  mort- 
gagor would,  of  course,  at  his  own  proper  cost  and  charge,  have  the 
buggy  repaired,  if  necessary,  during  the  time  of  its  use  by  him  and 
the  existence  of  the  mortgage.     *     *     * 

"We  may  now  turn  to  the  rules  of  law  which  we  deem  applicable 
to  the  state  of  facts  developed  in  evidence  herein.  The  legal  title 
to  the  buggy  was  in  the  mortgagor.  He  was  the  OMoier  thereof;  the 
mortgagee  had  but  a  lien  thereon.  *  *  *  it  may  be  said  that  a 
lien  which  arises  by  force  of  the  common  law  may  be,  under  special 
circumstances,  superior  to  prior  existing  contractual  or  statutory 
liens  on  the  same  property.  In  Darlington,  Pers.  Prop.,  p.  48,  it  is 
stated  on  this  subject:  ''And  though,  in  general,  a  lien  cannot  be 
created  without  authority  of  the  owner,  liens  for  repairs  take  prece- 
dence of  prior  mortgages,  where  such  repairs  were  necessary  for 
purposes  within  the  intention  of  the  mortgage,  e.  g.,  repairs  on 
vessels  or  carriages,  which  the  mortgagor  was  to  continue  to  use." 
A  lien  on  property,  by  operation  of  the  common  law,  may  have 
precedence  of  an  existing  mortgage.  Jones,  Chat.  Mortg.,  §474; 
Herman,  Chat.  Mortg.,  p.  308.  In  the  case  of  White  v.  Smith,  44 
N.  J.  L.  105,  43  Am.  Rep.  347,  it  was  said:  "Williams  v.  Allsup, 
10  C.  B.  N.  S.  417,  is  the  leading  case  on  this  subject.  In  that  case 
the  plaintiff,  a  shipwright,  detained  a  vessel  for  his  charges  for 
repair-s,  as  against  a  mortgagee  under  a  prior  mortgage.  The  mort- 
gage had  been  recorded  pursuant  to  the  merchants'  shipping  act. 
The  vessel  was  left  in  the  mortgagor's  possession  and  control  for 
C.  P.  P.— 22 


338  Cases  on  Personal  Property 

use,  and  was  condemned  as  unseaworthy.  The  shipwright's  charges 
were  for  necessary  repairs,  made  by  the  mortgagor's  direction,  with- 
out the  knowledge  of  the  mortgagee.  The  court  sustained  the  ship- 
wright's lien  for  repairs  against  the  claim  of  the  mortgagee.  The 
course  of  reasoning  which  led  to  this  result,  as  expressed  in  the 
opinions  of  the  judges,  is  as  follows :  Erie,  Ch.  J.,  said :  'I  put  my 
decision  on  the  ground  that  the  mortgagee,  having  allowed  the 
mortgagor  to  continue  in  the  apparent  ownership  of  the  vessel, 
making  it  a  source  of  profit  and  a  means  of  earning  wherewithal  to 
pay  off  the  mortgage  debt,  the  relation  so  created  by  implication 
entitles  the  mortgagor  to  do  all  that  may  be  necessary  to  keep  her 
in  an  efficient  state  for  that  purpose.  *  *  *  The  state  of  the 
things,  therefore,  seems  to  involve  the  right  of  the  mortgagor  to  get 
the  vessel  repaired,  not  on  the  credit  of  the  mortgagees,  but  upon 
the  ordinary  terms,  subject  to  the  shipwright 's  lien.     *     *     * 

"We  are  not  holding  that  in  all  eases,  or  generally,  the  common- 
law  lien  will  override  and  be  superior  to  the  prior  chattel  mortgage 
lien,  but  that  in  cases  where  the  mortgagor  can  be  said  to  have 
expressed  or  implied  authority  from  the  mortgagee  to  procure 
repairs  to  be  made  on  the  mortgaged  property  it  will  be  so.  The 
carriage  company  was  entitled  to  its  lien,  and  it  was  superior  to  the 
lien  of  the  chattel  mortgage;  hence  the  judgment  of  the  district 
court  was  wrong,  and  must  be  reversed. 

Reversed  and  remanded. 

Ragan,  C,  dissents.  • 


Statutory  Lien. 

ALDINE  MANUFACTURING  CO.  v.  PHILLIPS. 

118  Mich.  162,  76  N.  W.  371,  42  L.  R.  A.  531.     1898. 

The  facts  are  stated  in  the  opinion. 

Hooker,  J. — The  defendant  being  a  stockholder  in  the  Aldine 
Manufacturing  Company,  that  company  filed  the  bill  in  this  cause, 
claiming  an  indebtedness  due  to  it  from  the  defendant  upon  open 
account  for  $1,000  and  upward,  and  praying  an  accounting  and  a 
decree  of  foreclosure  of  its  lien  upon  his  stock  in  default  of  pay- 


.     Transfer  of  Property  by  Act  of  the  Parties         339 

ment.  The  lien  is  claimed  to  exist  by  virtue  of  §  4161b5,  3  How. 
Anno.  Stat,  which  provides  that  the  corporation  shall  at  all  times 
have  a  lien  upon  all  the  stock  or  property  of  its  members  invested 
therein,  for  all  debts  due  from  them  to  such  corporation.  The  bill 
was  demurred  to  on  two  grounds:  (1)  That  there  was  no  juris- 
diction in  equity  to  enforce  the  lien;  (2)  that  the  remedy  provided 
by  3  How.  Anno.  Stat.  §§  4161c3-4161c7,  inclusive,  is  exclusive. 
The  demurrer  was  sustained,  and  the  bill  dismissed.  The  com- 
plainant has  appealed. 

Upon  the  part  of  defendant  it  is  claimed  that  equity  has  no 
jurisdiction  to  enforce  a  sale  of  the  property  to  satisfy  the  statu- 
toiy  lien  in  a  proceeding  brought  solely  for  that  purpose;  *  *  * 
The  theory  upon  which  the  bill  seems  to  have  been  filed  is  that  the 
lien  of  the  complainant  was  akin  to  that  of  a  mortgage  or  pledge 
of  the  stock,  and  carried  with  it  a  right  to  enforce  payment  of 
the  debt  secured  by  it,  through  foreclosure,  in  a  court  of  chancery, 
as  well  as  by  the  notice  and  sale  provided  for  by  the  statute  to 
which  allusion  has  been  made.  This  lien  is  not  one  which  is 
created  by  direct  agreement  of  the  parties,  such  as  a  pledge  or  a 
mortgage,  but  arises  by  operation  of  law  out  of  certain  business 
relations,  viz.,  that  of  corporation  and  stockholder.  It  is  not  in 
its  nature  an  equitable  lien,  like  the  lien  of  a  vendor  of  land  sold 
upon  contract  for  the  purchase  price.  In  such  cases,  under  our 
practice,  courts  of  equity  have  power  to  enforce  the  lien,  upon 
bill  practically  for  specific  performance,  to  which  the  enforcement 
of  the  decree  for  the  purchase  price,  by  sale  of  the  premises,  is  an 
incident.  *  *  *  Jt  is,  on  the  contrary,  a  legal  security,  closely 
analogous  to  a  common-law  lien,  which  last  is  said, not  to  be  enforce- 
able in  equity.  Indeed,  in  cases  of  common-law  liens,  which  always 
involve  possession  of  the  chattel,  actual  or  constructive  (2  Kent, 
12th  ed.  639),  the  creditor  had  no  right  to  sell  the  chattel  for  the 
purpose  of  obtaining  compensation.  The  lien  was  defined  to  be 
"the  right  of  detention,  which  artisans  and  others  who  have 
bestowed  labor  upon  an  article,  or  done  some  act  in  reference  to 
it,  *  *  *  had,  in  some  instances,  of  a  right  of  detention  thereof 
till  reimbursed  for  their  expenditures  and  labor."  *  *  *  As 
said  by  Chancellor  Kent:  "A  lien  is  in  many  cases  like  a  distress 
at  common  law,  and  gives  the  party  detaining  the  chattel  the  right 
to  hold  it  as  a  pledge  or  security  for  the  debt,  but  not  to  sell  it. 
*  *  *  See  also  Jones,  Liens,  §  335,  where  the  author,  in  dis- 
cussing a  carrier's  lien,  says  that  it,  "like  all  other  common-law 
liens  founded  upon  possession,  gives  him    (the  holder)    no  right 


340  Cases  on  Personal  Property 

to  sell  the  property,  but  only  a  right  to  retain  it  until  his  charges 
are  paid. ' '  Again,  in  §  1033  the  learned  author  says  that  ' '  a 
common-law  lien  *  *  *  is  merely  the  right  of  a  person  in  pos- 
session of  the  property  of  another  to  detain  it  until  certain  demands 
*     *    *    are  satisfied." 

In  Doane  v.  Russell,  3  Gray  382,  a  wagon  maker  sold  a  wagon, 
pursuant  to  notice  to  the  owner,  for  the  purpose  of  satisfying  his 
lien,  and  the  court  held  that  he  had  no  right  to  do  so.  In  Briggs 
V.  Boston  &  L.  R.  Co.,  6  Allen  246,  83  Am.  Dec.  626,  a  railroad  com- 
pany sold  flour  to  pay  their  charges  for  its  transportation,  and 
it  was  held  that  they  had  "only  a  right  to  detain  it  until  they 
were  paid,  and  not  to  sell  it  to  obtain  remuneration  to  which  they 
were  entitled,"  In  Pothonier  v.  Dawson,  Holt,  N.  P.  383,  Chief 
Justice  Gibbs  said:  "Undoubtedly  as  a  general  proposition,  a 
right  of  lien  gives  no  right  to  sell  the  goods."  This  was  obiter, 
but  nevertheless,  from  the  eminence  of  the  author  it  is  entitled 
to  great  weight.  The  doctrine  was  stated  in  Jones  v.  Pearle,  1 
Strange  557.  Again,  in  Lickbarrow  v.  Mason,  6  East  21,  note, 
the  rule  was  stated  by  Mr.  Justice  Buller  as  follows:  "But  he 
who  has  a  lien  only  on  goods  has  no  right  so  to  do  (i.  e.  sell  and 
dispose  of  them)  ;  he  can  only  retain  them  till  the  original  price 
be  paid."  *  *  *  jj^  Briggs  v.  Boston  &  L.  R.  Co.,  6  Allen  246, 
83  Am.  Dec.  626,  Merrick,  J.,  said:  "And  the  rule,  which  is  now 
well  established,  that  a  party  having  a  lien  only,  without  a  power 
of  sale  superadded  by  special  agreement,  cannot  lawfully  sell  the 
chattel  for  his  reimbursement,  is  as  applicable  to  carriers  as  to  all 
other  persons  having  the  like  claim  upon  property  in  their  pos- 
session." While  the  doctrine  of  these  cases — i.  e.  that  the  creditor 
cannot  sell  the  property — is  indisputable,  there  was  no  impediment 
to  the  recovery  of  judgment  and  sale  of  the  property,  as  well  as 
any  other  property  of  the  debtor  on  execution.    *    *     * 

Does  it  follow  that  a  common-law  lien  cannot  be  foreclosed  in 
equity  because  it  does  not  confer  upon  the  creditor  the  right  to 
sell  the  property?  It  is  evident  that,  in  eases  of  common-law  lien 
for  a  liquidated  claim,  a  judgment  and  execution  are  as  expeditious 
and  effective  as  a  proceeding  in  equity  would  be  likely  to  be,  and 
an  application  of  the  familiar  doctrine  that  equity  will  not  inter- 
vene when  there  is  an  adequate  remedy  at  law  would  seem  proper. 
It  is  a  significant  fact  that  we  are  not  cited  to  any  well-settled 
line  of  authorities  that  support  the  practice  of  foreclosing  common- 
law  liens  in  equity.  At  the  same  time,  Chancellor  Kent,  in  dis- 
cussing the  subject,  says:    "I  presume  that  satisfaction  of  a  lien 


Transfer  of  Property  by  Act  of  the  Parties         341 

may  be  enforced  by  a  bill  in  chancery."  2  Kent,  Com.  12th  ed. 
p.  642,  He  supports  the  statement  by  no  authorities,  however. 
And  in  Tete  v.  Farmers'  &  M.  Bank,  4  Brewst.  (Pa.)  308,  there  is 
a  dictum  that  in  proper  eases  the  creditor  may  invoke  the  aid  of 
a  court  of  equity  to  work  out  a  sale.  The  lien  with  which  we 
have  to  do,  is  not  a  common-law  lien,  but  is  statutory.  It  has  the 
attributes  of  a  common-law  lien,  however,  although  the  manual 
possession  of  the  certificates  of  stock  is  not  with  the  complainant. 
Inasmuch  as  a  transfer  of  the  stock  must  be  upon  the  books,  it 
may  be  urged  that  the  corporation  has  constructive  po.ssession.  But 
it  is  not  of  much  importance  whether  it  has  possession  or  not. 
Statutory  lines  often  exist,  although  the  creditor  has  not  posses- 
sion of  the  property ;  and  we  know  of  no  authority  that  treats  tlie 
matter  of  possession  as  depriving  statutory  liens  of  the  legal  attri- 
butes of  common-law  liens  to  which  they  are  analogous.  1  Jones, 
Liens,  §104,  says  that  "a  statutory  lien  without  possession  maj'-, 
by  force  of  the  statute,  have  the  same  operation  and  efficacy  that 
a  common-law  lien  has  with  possession."     *    *    * 

In  the  case  of  Southern  Michigan  Cedar  &  Lumber  Co.  v.  Mc- 
Donald, 57  Mich.  292,  Cooley,  Ch.  J.,  said  that  log  "labor  liens 
(which  are  statutory)  could  give  no  jurisdiction  to  a  court  of 
equity.  *  *  *  If  valid,  they  were  legal  claims. "  *  *  *  See 
South  Fork  Canal  Co.  v.  Gordon,  6  Wall.  561,  18  L.  Ed.  894,  where 
the  Federal  Supreme  Court  held  that  the  jurisdiction  to  enforce 
a  statutory  lien  "rested  on  the  statute,  and  could  extend  no 
further."  In  23  Am.  &  Eng.  Enc.  Law,  p.  697,  it  is  said :  "The 
lien  is  most  frequently  enforced  by  the  refusal  of  the  corporation 
to  register  transfers  from  an  indebted  member;"  citing  many 
cases.  It  adds  that  other  methods  of  enforcement  are  foreclosure 
and  sale  and  attachment.  Few  authorities  are  cited,  and  these 
will  be  discussed  later.  *  *  *  But,  when  we  search  for  cases 
where  statutory  or  common-law  liens  have  been  foreclosed  in  equity 
upon  bills  filed  for  the  purpose,  we  find  few,  though  it  is  probable 
that  the  states  of  Alabama,  Kentucky,  Illinois,  and  Maryland  would 
sustain  the  practice.  In  Westmoreland  v.  Foster,  60  Ala.  448, 
a  bill  was  filed  against  a  tenant  to  enforce  a  lien  for  rent,  against 
cotton  in  the  hands  of  a  vendor  of  the  tenant.  It  was  there  held 
that  a  statutory  lien,  which  is  an  incident  of  some  contract  made, 
is  enforceable  by  the  common  processes  of  the  law.  This  case  pro- 
ceeded upon  the  theory  of  a  trust.  *  *  *  In  Kenton  Ins.  Co. 
V.  Bowman,  84  Ky.  430,  a  suit  was  brought  to  foreclose  a  mortgage 
on  the  property  of  the  wife  of  Shinkel  to  the  complainant.    Shinkel 


342  Cases  on  Personal.  Property 

held  stock  in  the  complainant  company,  and  by  an  amended  peti- 
tion the  complainant  claimed  a  lien  on  that  stock  to  secure  this 
mortgage  debt,  or  any  part  which  should  remain  unsatisfied  by 
the  foreclosure  of  the  mortgage.  A  decree  of  foreclosure  was 
granted.  *  *  *  In  National  Bank  of  the  Republic  v.  Rochester 
Tumbler  Co.  172  Pa.  614,  a  bill  was  filed  to  compel  a  transfer  of 
stock  to  a  pledgee.  The  tumbler  company  filed  a  cross  bill  to 
enforce  its  lien,  which  was  sustained,  and  the  stock  Avas  sold  to 
satisfy  it.  In  case  of  Farmers'  Bank  of  Maryland's  Case,  2  Bland, 
Ch,  394,  an  executor  filed  a  bill  to  compel  the  bank  to  apply  stock 
dividends  upon  indebtedness  due  the  bank  from  the  intestate,  and 
to  sell  the  stock,  and  apply  the  proceeds,  and  that  only  the  defi- 
ciency after  such  application  of  dividends  and  sale  of  stock  should 
be  admitted  as  a  claim  against  the  estate.  It  will  be  seen  from 
the  foregoing  that  in  nearly  all  of  these  cases  jurisdiction  might 
have  been  sustained  upon  other  grounds  than  that  of  foreclosure, 
and  that  the  court  might  therefore,  in  order  to  do  justice  between 
the  parties,  have  allowed  a  sale  of  the  stock.  *  *  *  It  is  mani- 
fest that  there  is  confusion  in  the  law  upon  this  subject.  If  it  is 
true  that  equity  has  jurisdiction  to  enforce  payment  by  foreclosure 
in  all  cases  of  statutory  liens,  it  must  be  because  of  a  difference 
between  them  and  common-law  liens,  which  we  have  not  been  able 
to  discover,  or  because  of  the  force  to  be  accorded  to  authorities 
comparatively  modern,  few  of  which  are  cases  of  foreclosure  merely. 
If  that  is  the  rule,  it  will  be  hard  to  distinguish  the  present  case 
from  any  other  lien  for  labor,  carriage,  or  storage.  The  log  lien, 
which  has  been  discussed,  would  be  no  exception ;  for,  if  chancery 
has  a  general  jurisdiction  to  enforce  liens,  it  is  not  lost  by  the 
addition  of  a  statutory  method  of  relief.  Authorities  are  numerous 
in  support  of  this  proposition.  So  that,  to  our  mind,  the  authori- 
ties, if  there  are  such,  that  hold  the  statutory  remedies  are  exclu- 
sive, recognize  the  want  of  jurisdiction  in  equity.  We  are  of  the 
opinion  that  resort  to  equity  is  neither  necessary  nor  permissible 
in  the  majority  of  lien  cases,  and  that  the  courts  of  law  can  deal 
with  them  cheaply  and  expeditiously.  On  the  other  hand,  we  have 
no  doubt  that  equity,  having  jurisdiction  for  other  purposes,  may 
order  sales  of  property,  for  the  satisfaction  of  liens,  as  was  dons 
in  our  own  case  already  cited. 

It  is  contended  that  such  jurisdiction  is  shown  by  the  bill  in 
this  case,  but  we  think  not.  It  seems  to  be  a  foreclosure  bill  sim- 
ply^    *     #    *    -^g  ggg  jjQ  opportunity  for  a  multiplicity  of  suits, 


Transfer  of  Property  by  Act  of  the  Parties         343 

and  the  bill  does  not  show  that  for  any  reason  the  remedy  by 
judgment  and  execution  is  not  adequate. 
We  must  affirm  tlie  decree,  with  costs. 

Montgomery,  J.,  did  not  sit.     The  other  Justices  concur. 


Right  of  Priority  in  Liens. 

SULLIVAN  V.  CLIFTON. 

55  N.  Jer.  Law  324,  26  Atl.  964,  20  L.  R.  A.  719.    1893. 

Action  for  the  possession  of  a  horse. 

The  facts  are  stated  in  the  opinion. 

Van  Syckel,  J. — On  the  2d  of  October,  1891,  one  Amos  Wells 
executed  to  Sullivan,  the  plaintiff,  a  chattel  mortgage  on  a  horse 
owned  by  Wells.  The  mortgage  was  immediately  placed  on  record, 
the  mortgagor  retaining  possession  of  the  horse.  After  the  mort- 
gage had  been  lodged  for  record,  the  mortgagor,  without  the  knowl- 
edge of  Sullivan,  left  the  horse  at  the  livery  stable  of  the  defendant, 
Clifton,  to  be  boarded  and  kept.  The  only  question  in  the  case  is 
whether  the  lien  of  the  chattel  mortgage  is  superior  to  the  statutory 
lien  of  the  livery  stable  keeper.  Our  statute  reads  as  follows: 
"That  all  livery  stable,  boarding,  and  exchange  stable  keepers 
shall  have  a  lien  on  all  horses  and  other  animals  left  with  them 
in  livery  for  board  or  sale  or  exchange  and  also  upon  all  car- 
riages, wagons,  sleighs,  and  harness  left  with  them  for  stor- 
age, sale,  or  exchange,  for  the  amount  of  the  bill  due  to 
the  proprietor  of  any  such  stable  for  the  board  and  keep  of  any 
such  horse  or  other  animal,  and  also  for  such  storage;  and  shall 
have  the  right,  \sathout  the  process  of  law,  to  retain  the  same,  until 
the  amount  of  such  said  indebtedness  is  discharged."  The  courts 
of  TennesJsee,  New  Hampshire,  Vermont,  and  Massachusetts  hold 
that  the  mortgagee  is  entitled  to  priority.  *  *  *  I  have  found 
but  two  cases  holding  otherwise:  Smith  v,  Stevens,  36  Minn.  303, 
31  N.  W.  Rep.  55;  Case  v.  Allen,  21  Kan.  217.  In  the  former  case 
the  statute  gave  the  liveryman  a  lien  for  keep  of  horses  at  the 
request  either  of  the  owner  or  lawful  po.ssessor  thereof,  and  pro- 
vided that  he  might  retain  the  animals  until  his  charges  were  paid. 


344  Cases  on  Personal  Property 

Under  that  statute  no  other  view  could  reasonably  be  taken.  In 
the  Kansas  case,  Justice  Brewer,  in  support  of  his  view,  giving 
preference  to  the  statutory  lien,  cites  the  English  cases  giving  a 
lien  for  the  repairs  of  vessels  made  at  the  instance  of  the  mort- 
gagor priority  over  a  previous  mortgage  executed  by  him.  This 
preference  rests  not  upon  statute,  but  upon  a  rule  of  the  commercial 
law  which  does  not  dominate  this  case.  The  English  courts  base 
the  superior  right  of  one  who  repairs  a  vessel  upon  this  ground, 
viz. :  that,  the  mortgagee  having  allowed  the  mortgagor  to  continue 
in  the  apparent  full  ownership  of  the  vessel,  there  arises  an  impli- 
cation that  the  mortgagee  has  authorized  him  to  make  repairs 
which  give  an  additional  value  to  the  vessel,  and  keep  it  in  an 
efficient  condition  for  service.  "Williams  v.  Allsup,  100  E.  C.  L. 
416.  They  hold,  however,  that  the  case  of  an  agistment  does  not 
fall  within  the  same  principle,  inasmuch  as  the  agister  does  not 
confer  any  additional  value  on  the  animal;  he  simply  takes  the 
animal  to  feed  it.  Jackson  v.  Cummins,  5  Mees.  &  W.  342;  Wal- 
lace V.  Woodgate,  1  Car.  &  P.  575.  The  cases  are  cited  and  dis- 
cussed by  Mr.  Justice  Depue  in  White  v.  Smith,  44  N.  J.  Law  105, 
and  this  distinction  is  adverted  to  in  that  case.  Hence  it  was  that 
the  agister  of  cattle,  not  being  within  the  reason  of  the  rule  upon 
which  the  lien  for  the  repairs  of  vessels  was  based,  was  not  entitled 
at  common  law  to  the  like  protection.  Nor  is  the  liveryman  within 
the  reason  of  the  rule  which  applies  to  innkeepers.  An  innkeeper 
is  bound  to  entertain  his  guest,  but  even  he  at  common  law  acquires 
no  lien  on  the  goods  which  his  guest  brings  with  him,  if  he  knows 
that  the  guest  is  unlawfully  in  possession  of  them.  A  liveryman 
is  not  bound  to  receive  a  horse  on  keep.  In  this  case  he  had  notice 
of  the  mortgage,  and  could  have  declined  to  take  the  horse,  unless 
he  was  willing  that  his  lien  under  the  statute  should  be  subject 
to  the  mortgage.  The  lien  of  the  liveryman  as  well  as  that  of  the 
mortgage  resting  exclusively  upon  statutory  provisions,  the  one 
having  no  higher  claim  to  be  enforced  than  the  other,  the  lien  of 
the  former,  being  subsequent  in  time,  and  taken  with  full  notice 
of  the  right  of  the  latter,  must,  upon  principle,  be  subject  to  it. 
The  maxim  ''prior  est  in  tempore,  potior  est  in  jure"  applies.  It 
is  one  of  the  characteristics  of  common-law  liens  which  arise  upon 
considerations  of  justice  and  policy,  by  operation  of  law,  as  dis- 
tinguished from  liens  created  by  contract  or  statute,  that  the 
former,  as  a  general  rule,  attach  to  the  property  itself  without 
any  reference  to  ownership,  and  override  all  other  rights  in  the 
property,  while  the  latter  are  subordinate  to  all  prior  existing 


Transfer  of  Property  by  Act  of  the  Parties         345 

rights  therein.    In  my  opinion,  the  mortgage  must  prevail  over  the 
contesting  lien,  and  the  judgment  below  should  be  reversed.^ 


Parting  with  Possession. 
SUSENBRENNER  v.  MATHEWS  et  al. 
48  Wis.  250,  3  N.  W.  599.     1879. 
The  facts  are  stated  in  the  opinion. 

Ryan,  C.  J.— The  shops  of  the  appellant,  Schweitzer  and  Max- 
well, although  in  the  same  building,  were  held  by  them  respectively 
in  severalty;  and  the  right  of  way  of  Maxwell,  although  passing 
through  the  shops  of  the  appellant  or  Schweitzer,  was  part  of  his 
building  and  used  by  him  of  his  own  right. 

The  buggy  belonging  to  Maxwell  was  delivered  to  him  through 
the  right  of  way  by  the  appellant,  after  it  had  been  ironed  by  the 
latter.  It  was  delivered  with  the  expectation  that  it  should  be 
painted  by  Maxwell ;  but  Maxwell  owed  no  duty,  either  to  Schweitzer 
or  the  appellant,  to  paint  it.  The  delivery  was  unconditional,  and 
the  buggy  must  be  taken  to  have  been  delivered  to  Maxwell  in  his 
right  as  owner  of  it. 

This  delivery  operated  as  an  absolute  waiver  of  all  lien  of  the 
appellant  for  ironing  the  buggy.  The  essence  of  lien,  in  such 
cases,  is  possession.  Lien  cannot  survive  possession;  and  except 
in  case  of  fraud,  and  perhaps  mistake,  such  a  lien  cannot  be  restored 
by  resumption  of  possession.  "Lien  is  a  right  to  hold  possession 
of  another's  property  for  the  satisfaction  of  some  charge  attached 
to  it.  The  essence  of  the  right  is  possession,  and  whether  that 
possession  be  of  officers  of  the  law  or  of  the  person  who  claims 
the  right  of  lien,  the  chattel  on  which  the  lien  attaches  is  equally 
regarded  as  in  the  custody  of  the  law.  Lien  is  neither  a  jus  ad  rem 
nor  a  jus  in  re,  but  a  simple  right  of  retainer."  3  Parsons' 
Cont.  234. 

The  voluntary  parting  with  the  possession  of  the  goods  will 
amount  to  a  waiver  or  surrender  of  a  lien;  for,  as  it  is  a  right 
founded  upon  possession,  it  must  ordinarily  cease  when  the  pos- 
session ceases."    Story's  Ag.  §367. 

1  See  note  to  Shaw  v.  Webb,  p.  355. 


346  Cases  on  Personal  Property 

As  this  disposes  of  the  lien  set  up  by  the  appellant  to  support 
this  action,  it  is  immaterial  how  the  respondents  came  into  pos- 
session. In  replevin,  a  plaintiff  recovers  on  his  own  right  of  pos- 
session, not  on  the  weakness  of  the  defendant's  right. 

The  judgment  of  the  court  below  is  affirmed.^* 


Mechanic's  Lien. 

Definiti&n — Nature  of. 

MOCHON  V.  SULLIVAN  et  al. 

1  Montana  470.    1871. 

The  facts  are  stated  in  the  opinion. 

Murphy,  J. — This  suit  was  brought  to  foreclose  a  mechanic's 
lien  against  certain  property  described  in  the  complaint  of  the 
defendant  Sullivan  under  an  act  of  the  territorial  legislature, 
entitled  ''An  act  securing  liens  to  mechanics  and  others,"  approved 
December  30,  1864,  and  was  tried  and  determined  in  conformity 
with  the  provisions  thereof.    *     *     * 

The  cause  w^as  tried  by  the  court,  a  jury  being  named,  and  upon 
the  pleadings,  proofs,  and  findings,  a  judgment  was  rendered  in 
favor  of  the  plaintiff  against  the  defendant  Sullivan.    *     *    * 

The  only  matters  that  are  necessary  for  us  to  consider  here  are 
the  character  of  the  action  and  the  nature  of  the  judgment,  decree, 
or  final  order  to  be  entered. 

And  these  questions  involve,  to  some  extent,  the  construction  of 
the  statute  referred  to. 

The  mechanic's  lien  is  derived  from  the  principle  of  the  lien 
on  personal  property  at  common  law,  and  is  based  upon  statutory 
enactment  in  the  different  states  and  territories. 

It  is  remedial  in  its  character,  rests  upon  the  broad  foundation 
of  natural  equity  and  commercial  necessity. 

It  is  not  a  common-law  right,  but  simply  a  creature  of  the 
statute,  and  differs  in  some  respects  from  all  other  liens  known 
to  the  law. 

14  The  holder  of  a  lien  may  allow  the  owner  of  the  property  to  tal?e  it 
into  his  possession  and  remove  it  without  prejudice  to  the  lien,  if  so  agreed. 
De  Witt  V.  Prescott,  51  Mich.  298,  16  N.  W.  656. 


Transfer  of  Property  by  Act  of  the  Parties         347 

Under  the  common  law,  a  lien  only  exists  while  the  party  con- 
tinues in  possession  of  the  property  upon  which  he  has  bestowed 
his  labor,  for  by  parting  with  possession  he  shows  that  he  there- 
after trusts  to  the  personal  credit  of  his  debtor. 

But  to  the  validity  of  this  lien  no  possession  is  necessary,  for  it 
is  a  charge  upon  the  property  in  the  hands  of  the  owner,  and  when 
it  once  attaches,  it  relates  back  to  and  takes  effect  from  the  com- 
mencement of  the  labor  or  appropriation. 

It  continues,  without  either  form  or  notice,  for  a  certain  period 
according  to  the  statute,  and  then  is  kept  alive  by  the  act  of  the. 
party  and  judicial  process. 

It  is  not  a  general,  but  a  particular  lien,  and  is  in  its  nature 
peculiar  and  of  an  equitable  character. 

The  doctrine  upon  which  it  is  founded  is  upon  the  consideration 
of  natural  justice,  that  the  party  who  has  enhanced  the  value  of 
property,  by  incorporating  therein  his  labor  or  materials,  shall  have 
a  preferred  claim  on  said  property  for  the  value  of  said  labor  or 
materials. 

The  foundation  of  the  suit  to  enforce  it  arises  only  by  virtue  of 
an  express  or  implied  contract  with  the  owner,  and  the  proceedings 
to  some  extent  resemble  and  are  somewhat  in  the  nature  of  pro- 
ceedings in  rem. 

The  theory  of  the  lien  is,  that  the  party  by  whom  the  labor  is 
performed  or  materials  furnished  for  the  erection  or  repair  of 
buildings,  on  credit,  retains  his  claim  to  them  after  they  have 
entered  the  structure  and  become  inseparably  connected  with  it. 

The  object  of  the  statute  is  to  create  and  preserve  ample  security 
to  the  laborer  or  material  man,  and,  therefore,  to  charge  the  estate 
with  a  lien,  or  incumbrance,  independent  of  any  personal  remedy 
he  may  have. 

The  artificer  or  business  man  acquires  a  qualified  property  in 
the  thing  upon  which  he  has  bestowed  his  time  and  labor,  or  into 
which  he  has  incorporated  his  materials.  The  very  principle  upon 
which  his  right  is  grounded  comes  from  the  increased  value  of  the 
property  he  has  brought  about,  by  the  accession  of  his  labor  or 
materials,  and  is  purely  an  equitable  one. 

And  the  owner  thus  benefited  holds  his  property  subject  to  and 
liable  for  this  equitable  claim,  which  grows  out  of  and  depends 
upon  this  enhanced  value  of  his  interest.  We  are  of  opinion  that 
this  lien,  being  an  equitable  right,  or  in  the  nature  of  an  equitable 
right,  must  be  enforced  in  conformity  to  the  established  rules  and 
principles  governing  proceedings  in   chancery.     We  hold,   there- 


348  Cases  on  Personal  Property. 

fore,  that  in  so  far  as  the  mechanic's  lien  law  of  this  territory- 
authorizes  the  rendering  of  a  personal  judgment  as  at  law,  it  blends 
law  and  equity  together  in  the  proceeding,  is  in  contravention  of 
the  organic  act,  is  in  conflict  with  the  doctrine  laid  down  by  this 
court  in  the  case  of  Gallagher  et  al.  v.  Basey  et  al.,  decided  at  the 
last  term,  and  of  "Woolman  et  al,  v.  Garringer  et  al.,,  by  which  it 
was  re-affirmed  at  the  present  term,  and  is  void  and  of  no  effect. 
The  ease  is  remanded,  and  the  judment  is  modified  in  conformity 
with  the  order  made  at  the  last  term.    *    *    * 


Public  Property. 


JORDAN  et  al.  v.  BOARD  OF  EDUCATION  OF  TAYLOR'S 

FALLS. 

39  Minn.  298,  39  N.  W.  801.     1888. 

The  facts  are  stated  in  the  opinion. 

Mitchell,  J. — The  only  question  here  is  whether  under  chapter 
170,  Gen.  Laws  1887,  a  public  school-house  is  subject  to  a  lien 
for  work  done  or  materials  furnished  towards  its  erection.  While 
in  some  states  it  is  held  that  what  may  be  called  the  private  prop- 
erty of  municipal  corporations — that  is,  such  as  they  own  for 
profit,  and  not  for  a  public  use — may  be  sold  on  execution,  yet 
the  universal  rule  is  that,  in  the  absence  of  express  statutory  author- 
ity, the  property  of  such  corporations,  held  for  and  devoted  to  a 
public  use,  is  not  liable  to  execution  on  a  general  judgment.  This 
rule  is  founded  upon  considerations  of  public  policy,  obvious  from 
the  very  nature  of  such  corporations,  and  the  purposes  for  which 
they  are  created.  They  are  mere  agencies  of  the  state,  brought 
into  being  in  aid  of  the  civil  government  of  the  state  in  the  admin- 
istration of  the  local  affairs  of  the  districts  incorporated.  The 
power  to  sell,  on  execution,  their  property  held  and  used  for  public 
purposes,  such  as  court-houses,  jails,  poor-houses,  hospitals,  school- 
houses,  and  the  like,  would  be  fraught  with  great  public  evils, 
and  subversive  of  the  very  purposes  for  which  such  corporations 
were  created.  Therefore,  for  the  enforcement  of  judgments  against 
municipal  corporations,  the  courts  have  allowed  another  writ,  man- 
damus, to  compel  payment,  or  the  levy  of  a  tax  for  that  purpose. 


Transfer  of  Property  by  Act  of  the  Parties         349 

This  secures  the  fruits  of  the  judgment,  and  leaves  the  public 
property  intact,  for  the  use  to  which  it  is  devoted.  2  Dill.  Mun. 
Corp.  §  576 ;  *  *  *.  For  the  same  reasons,  and  upon  the  same 
considerations  of  public  policy,  property  which  is  exempt  from 
execution,  on  a  general  judgment  against  municipal  corporations, 
is  also  exempt  from  the  operation  of  a  mechanic's  lien  law,  unless 
it  expressly  appears  by  the  law  that  such  property  was  intended 
to  be  included ;  and  to  warrant  this  inference  something  more  must 
appear  than  a  general  provision  that  the  claim  is  to  be  a  lien  upon 
a  particular  class  of  property.  Unless  the  state  of  Kansas  be  an 
exception  (see  Wikon  v.  School-Dist.,  17  Kan.  104),  this  principle 
of  construction  is,  so  far  as  we  can  ascertain,  universal.  The  author- 
ities are  numerous,  and  will  be  found  cited  in  any  text-book  on 
the  subject.  See  Phil.  Mech.  Liens,  §  179 ;  2  Jones,  Liens,  §  1375 ; 
Overt.  Liens,  §  543 ;  Kneel.  Mech.  Liens,  §  84.  While  enough  can 
be  gathered  from  the  crude  and  obscure  provisions  of  this  statute 
to  indicate  that  it  was  designed  to  be,  in  many  respects,  a  radical 
and  drastic  measure,  yet  there  is  nothing  in  its  language  expressive 
of  a  legislative  intent  to  repudiate  or  repeal  a  doctrine  founded 
upon  such  a  satisfactory  basis  of  public  policy.  In  view  of  the 
principle  governing  the  construction  of  such  statutes  already 
referred  to,  which  had  been  so  universally  adopted,  it  is  to  be 
presumed  that  if  the  legislature  had  intended  to  change  the  law 
in  that  respect  they  would  have  so  declared  in  express  terms.  It 
is  contended,  however,  that  this  rule  of  construction,  as  applied  to 
lien  laws,  is  predicated  upon,  and  follows  as  a  consequence,  from 
the  doctrine  that  such  property  is  exempt  from  execution  upon  a 
general  judgment ;  and  hence  is,  in  this  state,  inapplicable  to  school- 
districts  whose  property  may,  in  a  certain  contingency,  be  sold 
on  execution.  Gen.  St.  1878,  c.  36,  §§  119-122.  If  a  public  school- 
house  could  be  sold  under  a  general  judgment,  the  same  as  the 
property  of  a  natural  person  or  a  private  corporation,  there  would 
probably  be  no  good  reason  why  it  should  not  be  held  subject  to 
the  operation  of  a  mechanic's  lien  law,  at  least  in  favor  of  the 
creditors  of  the  district.  But  it  will  be  observed  that  it  is  only 
upon  a  remote  and  improbable  contingency  that  any  execution  can 
be  is.sued  against  a  school-district.  It  is  only  after  a  specific  tax 
has  been  levied  for  the  payment  of  the  judgment,  and  the  time 
for  the  collection  of  the  tax,  and  for  paying  over  the  money  by 
the  county  treasurer,  has  expired,  and  the  district  still  fails  to 
pay  the  judgment.  Ample  opportunity  is  thus  given  to  raise  funds 
with  which  to  pay  the  judgment,  without  endangering  school  prop- 


350  Cases  on  Personal  Property 

erty.  But  under  this  lien  law  the  court  rendering  the  judgment 
is  required  immediately  to  order  the  sheriff  to  sell  the  property 
on  three  weeks'  notice.  Under  such  procedure,  a  school-house 
might  be  sold  for  a  small  part  of  its  value,  and  be  irretrievably 
lost,  before  any  funds  could  be  raised  by  taxation  with  which  to 
pay  the  judgment  or  redeem  the  property.  It  may  also  be  sug- 
gested that,  if  such  property  is  subject  to  the  provisions  of  this 
statute,  it  would  be  so,  not  merely  in  favor  of  creditors  of  the 
school-district,,  but  also  in  favor  of  laborers  and  material-men  to 
whom  the  district  owed  nothing,  and  with  whom  it  had  no  contract 
relations.  It  would  require  more  than  is  found  in  this  statute  to 
justify  us  in  holding  that  the  legislature  intended  to  make  so 
radical  a  change  in  the  law  as  to  subject  the  public  property  of 
these  governmental  agencies  to  liens  in  favor  of  laborers  or  material- 
jjign^  Order  affirmed. 


Priority  of  Claim  of  Conditional  Vendor. 
SHAW  V.  AVEBB. 
131  Tenn.  173,  174  S.  W.  273,  1915  D.  (L.  R.  A.)  1141.     1915. 
The  facts  are  stated  in  the  opinion. 

Williams,  J. — Shaw  sold  an  automobile  to  one  Akers,  the  pur- 
chase price  being  represented  in  two  notes,  each  of  which  contained 
a  stipulation  retaining  title  to  the  machine  to  secure  payment. 
The  machine  passed  at  once  into  the  possession  of  the  vendee. 
Some  time  thereafter  it  became  necessary  to  have  some  repairs 
made  on  it,  and  the  automobile  was  taken  to  Webb,  a  mechanic, 
about  the  date  of  the  maturity  of  the  first  note.  After  the  repairs 
were  placed  the  machine  was  turned  back  by  the  mechanic  to  the 
conditional  vendee,  Akers.  On  default  being  made  in  the  payment 
of  the  first  maturing  note,  Shaw,  by  writ  of  replevin,  repossessed 
himself  of  the  machine.  Suit  was  thereupon  brought  by  Webb, 
the  mechanic,  against  Shaw,  the  vendor,  to  enforce  a  claimed 
mechanic's  lien  on  the  automobile  for  the  amount  of  the  repair 
bill  so  created. 

This  action  was  predicated  upon  a  recent  statute  (Acts  1909, 
chap.  150)  which  provides:     "That  there  shall  be  a  lien  upon  any 


Transfer  op  Property  by  Act  of  the  Parties         351 

vehicle  *  *  *  for  any  repairs  or  improvements  made  or  fixtures 
or  machinery  furnished  at  the  request  of  the  owner  or  his  agent 
in  favor  of  the  mechanic,  contractor,  founder,  or  machinist  who 
undertakes  the  "WOrk,"  etc. 

Judgment  was  rendered  in  favor  of  the  mechanic  by  the  circuit 
judge,  who  tried  the  case  without  the  intervention  of  a  jury.  On 
appeal  that  judgment  was  affirmed  by  the  court  of  civil  appeals; 
and  we  are,  by  petition  for  certiorari,  asked  to  review  the  judgment 
of  the  court  last  named. 

The  mechanic  had  no  actual  notice  of  the  retention  of  title ;  and 
the  conditional  vendor  did  not  know  that  the  machine  was  placed 
with  the  mechanic  to  be  repaired.  It  is  to  be  noted  that  we  are 
not  dealing  with  a  claim  by  Webb  to  the  artisan's  common-law 
lien  M^hich  depends  for  validity,  as  against  third  parties,  upon  the 
retention  of  possession  on  the  part  of  the  artisan.  Here  Webb 
had  parted  with  possession,  after  the  repairs  were  made  on  the 
automobile,  to  Akers,  the  conditional  vendee. 

However,  the  few  cases  that  pass  upon  the  right  of  an  artisan 
in  possession  and  claiming  such  common-law  lien  as  against  a  con- 
ditional vendor  of  the  personalty  repaired  by  analogy  shed  much 
light  upon  the  point  we  have  to  decide. 

In  Baughman  Automobile  Co.  v.  Emanuel,  137  Ga.  354,  38 
L.  R.  A.  (N.  S.)  97,  73  S.  E.  511,  we  understand  from  the  report 
of  the  case  that  such  common-law  lien  was  relied  upon  by  a  me- 
chanic for  repairs  put  by  him  on  an  automobile,  under  contract 
with  a  conditional  vendee  in  possession,  and  the  court  held  that 
the  artisan 's  lien  was  subordinate  to  the  right  of  the  vendor,  stand- 
ing on  his  title  retained.  In  that  ease  it  appeared  that  the  lien 
claimant  had  knowledge  of  the  rights  of  the  conditional  vendor 
at  the  time  the  work  on  the  machine  was  done. 

Small  V.  Robinson,  69  Me.  425,  31  Am.  Rep.  299,  involved  a 
contest  between  the  conditional  seller  of  a  hack,  which  had  been 
in  the  possession  of  the  vendee  for  about  two  years,  and  a  mechanic 
urging  the  common-law  lien  of  an  artisan.  A  like  ruling  was  made 
in  favor  of  the  conditional  seller. 

If  we  go,  for  further  analogy,  to  the  law  governing  chattel  mort- 
gages, we  find  the  rulings  to  be  at  least  apparently  variant.  The 
artisan's  common-law  lien  has  been  held  to  be  subordinate  to  the 
rights  of  a  mortgagee  of  such  a  chattel  under  a  registered  instru- 
ment; and  the  fact  that  the  mortgagor  is  permitted  to  remain  in 
possession,  in  the  absence  of  a  statute  providing  otherwise,  affords 
no  implied  authority  on  his  part  to  subject  the  chattel  to  such  a 


352  Cases  on  Personal  Property 

lien  in  priority.  A  lien  attaches,  it  is  held,  but  only  to  the  mort- 
gagor's interest.  Denison  v.  Shuler,  47  Mich,  598,  41  Am.  Rep. 
734,  11  N.  W.  402,  and  cases  cited;  Bissell  v.  Pearee,  28  N.  Y.  252; 
Hampton  v.  Seible,  58  Mo.  App.  181,  overruling,  it  would  seem; 
Kirtley  v.  Morris,  43  Mo.  App.  144 ;  7  Cyc.  39. 

Other  cases  uphold  the  priority  of  tlio  artisan's  lien,  over  the 
mortgagee's  title,  in  instances  where  there  may  fairly  be  implied 
a  consent,  on  the  part  of  the  mortgagee,  that  the  mortgagor,  while 
in  the  use  of  the  chattel,  may  have  it  repaired.  Thus,  in  Watts 
V.  Sweeney,  127  Ind.  116,  22  Am.  St.  Rep.  615,  26  N.  E.  680,  it 
was  held  that  a  machinist  was  entitled  to  prevail  on  such  a  lien 
as  against  the  claim  of  the  mortgagee  of  a  locomotive,  the  mort- 
gagor being  a  public  or  common  carrier,  and  the  repairs  being 
made  after  the  condition  of  the  mortgage  wa^  broken  and  the  mort- 
gage debt  had  become  due. 

In  Hammond  v.  Danielson,  126  Mass.  294,  the  subject-matter 
was  a  hack  let  for  hire  which  had  been  mortgaged  and  described 
in  the  mortgage  as  "now  in  use"  in  a  certain  livery  stable.  The 
mortgagor  was  left  in  possession  agreeably  to  the  terms  of  the 
mortgage;  that  is,  the  manifest  intention  of  the  parties  was  that 
the  hack  should  continue  to  be  driven  for  hire  and  kept  in  a  proper 
state  of  repair  for  that  purpose.  For  repairs  made  under  contract 
with  the  mortgagor  the  artisan's  lien  was  awarded  priority. 

In  Ruppert  v.  Zang,  73  N.  J.  L.  216,  62  Atl.  998,  in  an  opinion 
by  Pitney,  J.,  it  was  held  that  a  common-law  lien  had  priority 
over  a  mortgage  when  claimed  for  repairs  upon  a  wagon  by  an 
artificer,  made  without  the  knowledge  of  the  mortgagee. 

However,  in  the  cases  of  "Watts  v.  Sweeney  and  Ruppert  v. 
Zang,  supra,  the  distinction  between  the  effect  of  such  a  common- 
law  lien  and  a  statutory  lien  of  a  mechanic  was  noted — ^whether 
properly  so  is  a  debatable  point.  Judge  Pitney,  in  the  last-named 
ease,  refers  to  Sullivan  v.  Clifton,  55  N.  J.  L.  324,  20  L,  R,  A,  719, 
39  Am,  St.  Rep,  652,  26  Atl.  964,  as  a  case  pointing  out  the  ground 
of  such  a  distinction.  It  was  said  in  Sullivan  v.  Clifton :  * '  It  is 
one  of  the  characteristics  of  common-law  liens  which  arise,  upon 
considerations  of  justice  and  policy,  by  operation  of  law,  as  distin- 
guished from  liens  created  by  contract  or  statute,  that  the  former, 
as  a  general  rule,  attach  to  the  property  itself  without  any  refer- 
ence to  ownership,  and  override  all  other  rights  in  the  property, 
while  the  latter  are  subordinate  to  all  prior  existing  rights  therein. ' ' 

See  also  D'Gette  v.  Sheldon,  27  Neb,  829,  44  N.  W,  30;  25  Cyc. 
678. 


Transfer  of  Property  by  Act  of  the  Parties  353 

"We  think  it  manifest  that  if  the  New  Jersey  court  had  been 
dealing  with  a  claim  that  could  only  have  had  basis  on  a  statute, 
like  the  one  in  the  pending  case,  it  would  have  held  the  same  inferior 
to  the  mortgage  lien. 

Coming  now  to  precedents  which  contrast  the  rights  of  statutory 
lien  claimants  with  those  of  mortgagees  under  previously  regis- 
tered chattel  mortgages: 

In  McGhee  v.  Edwards,  87  Tenn.  506,  3  L.  R.  A.  654,  11  S.  W. 
316,  it  was  mled  that  the  statutory  lien  of  a  livery  stable  keeper 
on  a  horse  must  yield  to  the  lien  of  such  a  mortgagee,  where  the 
lien  claim  arises  under  contract  with  the  mortgagor  in  possession 
before  the  maturity  of  the  mortgage.  In  accord  are  many  cases 
relating  to  the  statutory  lien  for  pasturage  of  live  stock.     *    *     * 

Thus,  in  the  recent  case  of  Adler  v.  Godfrey,  153  Wis.  186,  140 
N.  "W.  1115,  it  was  held  that  the  fact  that  the  mortgagor  is  per- 
mitted to  remain  in  possession  of  a  mortgaged  automobile  affords 
him  no  implied  authority  to  create  a  lien  thereon  for  storage  (a 
lien  by  statute  in  that  state)  superior  to  the  rights  of  the  mort- 
gagee, and  that  the  rights  are  not  changed  by  the  fact  that  the 
mortgagee  knew  that  the  mortgagor  was  keeping  the  machine  in  a 
public  garage. 

The  claim  advanced  in  this  case  in  behalf  of  Webb  as  lienor  is 
based  upon  a  statute  which  awards  a  lien,  notwithstanding  the 
mechanic  may  have  parted  with  possession,  upon  any  vehicle  "for 
any  repairs  or  improvements  made  *  *  *  at  the  request  of  the 
owner  or  his  agent,"  but  saving  the  rights  of  purchasers  without 
notice  under  good-faith  transfers. 

The  question  for  solution,  then,  is :  Is  this  statutory  lieu  superior 
to  the  rights  of  Shaw,  the  conditional  vendor? 

We  have  not  been  cited,  nor  have  we  been  able  to  find,  where 
the  point  in  the  presented  phase  has  been  ruled  in  any  reported 
case.  We  are  of  opinion,  however,  that  on  the  above  and  other 
analogies  of  the  law,  the  lien  claimant  must  fail  in  the  pending 
case. 

The  Michigan  court  ruled  in  Presque  Isle,  Sash  &  Door  Co.  v. 
Reichel,  179  Mich.  466,  146  N.  W.  231,  that  the  title  of  a  condi- 
tional seller  of  a  saw  has  priority  over  a  statutory  lien  of  a  laborer 
for  services  in  installing  the  saw  in  a  mill  under  contract  with  the 
vendee. 

Where  real  estate  is  the  subject-matter  of  transfer  and  the  vendor 
retains  the  legal  title,  it  is  not  within  the  power  of  the  vendee, 
under  a  bond  for  title  or  under  a  contract  to  convey  (nothing  else 
C.  P.  P.— 23 


354  Cases  on  Personal  Property 

appearing),  to  fix  a  mechanic's  lien  upon  the  property  which  will 
be  superior  to  the  title  so  retained.  Gillespie  v.  Bradford,  7  Yerg. 
168,  27  Am.  Dec.  494;  Rhea  v.  Allison,  3  Head  176;  Belnap  v. 
Condon,  23  L.  R.  A.  (N.  S.)  601,  note. 

In  this  state,  the  retention  by  a  vendor  of  the  title  to  personal 
property  to  secure  the  purchase  money  partakes  of  the  nature  of 
a  lien.  McDonald  Automobile  Co.  v.  Bicknell,  129  Tenn.  493,  167 
S.  W.  108,  and  cases  cited.  Such  title,  when  retained  in  a  written 
contract,  unregistered,  is  superior  to  any  right  acquired  by  a  pur- 
chaser for  value  and  without  notice.    *    *    * 

It  is  not  easy  to  conceive,  then,  how  the  title  retained  or  lien 
that  is  prior  in  time  may  be  supplanted  by  a  junior  lien,  created 
by  statute  in  behalf  of  a  mechanic,  without  the  concurrence  of  the 
holder  of  the  precedent  lien ;  and  it  is  not  contended  that  any  such 
express  assent  or  concurrence  is  shown  in  the  pending  case. 

There  are  cases  which  hold  that  such  consent  may  be  implied 
from  the  nature  of  the  transaction  or  from  the  circumstances.  In 
Hammond  v.  Danielson,  and  Watts  v.  Sweeney,  supra,  the  chattels 
were  in  use  by  public  carriers,  and  the  courts  found  room  to  imply 
such  consent.  In  Drummond  Carriage  Co.  v.  Mills,  54  Neb.  417, 
40  L.  R.  A.  761,  69  Am.  St.  Rep.  719,  74  N.  W.  966,  involving  a 
buggy,  the  court  construed  the  language  of  the  mortgage  to  have 
had  the  making  of  repairs  in  contemplation.     *     *     * 

We  are  of  opinion,  therefore,  that  something  more  is  required 
than  the  fact  that  a  vehicle,  which  may  need  repair  in  order  to 
continued  personal  use  by  the  vendee,  is  placed  in  the  possession 
of  the  conditional  vendee.  The  vendor  in  such  case  should  not  be 
considered  as  consenting  in  advance  to  the  subordination  to  that 
which  both  parties  patently  intended  to  make  superior — the  title 
retained  for  the  security  of  the  payment  of  the  purchase  money. 

*  *  *  To  announce  a  doctrine  such  as  is  contended  for  by 
the  mechanic  in  this  case  would  be  to  deprive  a  note  which  contains 
a  reservation  of  title  to  personalty  of  a  no  inconsiderable  element 
of  marketability.  The  transferee  of  such  paper  should  not,  we 
believe,  take  it  subject  to  the  risk  of  having  his  right  embarrassed 
or  lessened  by  such  act  of  the  vendee  maker,  when  the  note  contains 
nothing  to  put  him  on  notice. 

It  should,  perhaps,  be  noted,  by  way  of  parenthesis,  that  a  dis- 
tinction is  taken  by  the  authorities  between  such  a  claim  of  a  me- 
chanic and  the  common-law  lien  of  an  innkeeper  on  a  chattel  held 
in  possession  as  conditional  vendee  by  a  guest.  To  such  a  chattel 
brought  upon  his  premises,  the  lien  attaches  in  favor  of  the  inn- 


Transfer  op  Property  by  Act  of  the  Parties         355 

keeper,  provided  he  had  no  notice  of  the  nature  and  extent  of  the 
guest's  title  when  the  property  was  brought  into  the  inn.  In 
such  case  the  common-law  imposed  upon  the  innkeeper  the  obliga- 
tion to  receive  the  guest  and  his  baggage,  and  that  liability  is 
deemed  sufficient  to  give  rise  to  a  coextensive  lien.  So  to  speak,  by 
way  of  recompense  for  the  enforced  obligation,  the  lien  is  held 
to  attach  to  the  property  regardless  of  the  true  ownership. 

The  Court  of  Civil  Appeals  in  its  judgment  awarded  priority  to 
the  mechanic  on  his  claim  to  a  paramount  lien.  Reversed,  with 
judgment  here  in  accord  with  this  opinion.^^ 


Rule  of  Construction. 


SMALLEY  et  al.  v.  NORTHWESTERN  TERRA-COTTA  CO. 

et  al. 

113  Mich.  141,  71  N.  W.  466.     1897, 

The  facts  are  stated  in  the  opinion. 

Moore,  J. — The  defendant  Schmidt,  the  owner  of  land  in  Detroit, 
in  the  spring  of  1895  contracted  with  Mr.  Gearing,  a  building 
contractor,  for  the  erection  of  a  business  block  thereon.  In  the 
fall  of  1895,  when  the  building  was  partially  completed,  a  number 
of  material  men  filed  liens  against  the  lot  and  building  for  materials 
which  they  severally  claimed  to  have  furnished  to  Mr.  Gearing. 
The  original  bill  of  complaint  in  this  cause  was  filed  in  January, 
1896,  for  the  enforcement  of  one  of  these  liens,  and  the  other  lien 
claimants  and  the  defendant  Schmidt,  as  owner  of  the  land  and 
building,  were  made  defendants.  On  March  17, 1896,  the  defendant, 
the  Northwestern  Terra-Cotta  Company,  one  of  the  lien  claimants, 
filed  an  answer  in  the  nature  of  a  cross  bill,  praying  for  the  enforce- 
ment of  its  lien,  which  was  filed  on  the  14th  day  of  November,  1895. 

15  Whether  various  types  of  lions  or  chattel  mortgages  are  given  priority, 
one  over  the  other,  is  largelv  a  mutter  of  statutory  regulation.  See  Burrow  v. 
Fowler,  68  Ark.  178,  56  S.  W.  1061 ;  Wilson  v.  Donaldson,  121  Cal.  8,  53  Pac. 
404,  43  L.  R.  A.  524,  66  Am.  St.  Rep.  17;  Allred  v.  Ilaile,  84  Ga.  570.  10  S.  E. 
1095;  Case  v.  Allen,  21  Kan.  217,  30  Am.  Rep.  425;  Deniaon  v.  Shulcr  et  al., 
47  Mich.  598,  11  N.  W.  402,  41  Am.  Rep.  734;  Oarr,  Scott  &  Co.  v.  Clements, 
4  N.  Dak.  562,  62  N.  W.  640;  Reeves  &  Co.  v.  Russell  et  al..  28  N.  Dak.  265, 
148  N.  W.  654,  1915  D.  (L.  R.  A.)  1149;  Olsen  v.  Smith,  84  Wash.  228,  146 
Pac.  572. 


356  Cases  on  Personal  Property 

To  this  answer,  in  so  far  as  it  claims  the  benefit  of  a  cross  bill, 
the  defendant  Schmidt  filed  a  general  demurrer  on  the  19th  day 
of  March,  1896.  On  January  2,  1897,  the  court  sustained  the 
demurrer,  upon  the  ground  that  the  answer  failed  to  show  that  any 
copy  of  the  statement  of  lien  filed  with  the  register  of  deeds  was 
served  upon  the  defendant  Schmidt,  and  that  it  failed  to  show  that 
any  proof  of  service  of  a  copy  of  that  statement  upon  said  defendant 
Schmidt  was  filed  in  the  office  of  the  register  of  deeds  before  the 
institution  of  proceedings  to  enforce  the  lien.  The  order  gave 
leave  to  amend.  Upon  the  same  day  an  amended  answer  was  filed, 
setting  up  the  service  of  a  copy  of  the  statement  upon  Schmidt 
on  the  22d  day  of  November,  1895,  and  averring  that  on  the  11th 
day  of  December,  1896,  proof  pf  that  service  by  affidavit  was  filed 
in  the  office  of  the  register  of  deeds.  Immediately  upon  the  filing 
of  this  amend'ed  answer,  a  demurrer  thereto  was  filed.  *  *  * 
Upon  the  same  day,  January  22,  1897,  this  demurrer  was  sustained, 
and  the  amended  answer  in  the  nature  of  a  cross  bill,  in  so  far  as 
it  claims  the  benefit  of  a  cross  bill  against  the  defendant  Schmidt 
and  his  property,  was  dismissed.  From  this  order  the  terra-cotta 
company  takes  the  present  appeal.  No  demurrer  or  other  objection 
was  filed  by  any  other  person  than  defendant  Schmidt  to  this 
answer  in  the  nature  of  a  cross  bill. 

*  *  *  The  question,  then,  is  whether,  when  all  the  steps  to 
establish  a  lien  have  been  taken,  except  the  filing  with  the  register 
of  deeds  of  proof  of  service  of  the  statement  of  lien  on  the  owner 
before  commencing  proceedings  to  enforce  the  lien,  the  proceedings 
must  fail. 

It  is  the  contention  of  the  appellee  that,  as  this  is  a  proceeding 
in  derogation  of  the  common  law,  the  statute  must  be  strictly  con- 
strued, and,  as  the  pleadings  do  not  show  a  compliance  with  the 
law,  the  proceeding  must  fail.  It  is  admitted  on  the  part  of  the 
appellant  that,  as  to  all  those  requirements  of  the  statute  necessary 
to  create  the  lien,  the  statute  is  mandatory,  and  must  be  followed ; 
but  it  is  claimed  that  after  the  lien  is  once  established  its  provisions 
are  directory,  and  that  if  such  steps  are  taken  as  fully  protect 
the  owner,  as  in  this  instance,  by  giving  him  notice  of  the  claim 
within  the  time  fi:sed  by  statute,  he  is  not  harmed,  and  cannot 
complain.  It  has  long  been  the  settled  law  in  this  state  that  these 
proceedings  are  purely  statutory,  and  that,  to  create  a  lien  under 
them,  the  statute  must  be  followed  in  all  its  essentials.  "Wagar 
v.  Briscoe,  38  Mich.  587 ;  Electric  Co.  v.  Norris,  100  Mich.  496,  59 
N.  W.  151 ;  Mercantile  Co.  v.  Mosser,  105  Mich.  18.  62  N.  W.  1120. 


Transfer  of  Property  by  Act  of  the  Parties         357 

In  the  case  of  Sheridan  v.  Cameron,  65  Mich.  680,  32  N.  W.  894, 
which  was  a  proceeding  to  enforce  a  mechanic's  lien,  where  the 
proceedings  were  attacked  on  the  ground  that  they  were  prosecuted 
too  late  and  irregularly,  the  petition  was  filed  within  the  60  days 
allowed  by  statute,  but  it  did  not  contain  a  prayer  for  process. 
The  notice  of  lis  pendens  was  filed  after  the  60  days  expired.  It 
was  claimed  that  for  these  reasons  the  proceeding  must  fail.  In 
discussing  the  case,  Justice  Campbell  said:  *  *  *  The  claim 
that  the  lien  law  is  to  be  rigidly  construed  is  not  correct,  in  the 
full  extent  claimed.  There  is  no  doubt  that  a  purely  statutory 
lien  must  conform  exactly  to  the  statutory  condition;  but  when  it 
once  attaches,  and  is  put  in  process  of  foreclosure,  the  proceedings, 
while  in  part  definitely  fixed,  are  nevertheless  in  important  particu- 
lars left  to  the  general  course  of  practice.  No  construction  should 
be  strained  at  in  order  to  defeat  them,  but  the  rights  of  all  parties 
should  be  harmonized  and  respected  as  far  as  is  reasonably  prac- 
ticable." *  *  *  In  De  Witt  V.  Smith,  63  Mo.  263,  it  is  said: 
"The  courts  at  one  time  were  inclined  to  hold  that  enactments 
for  mechanics'  liens  were  in  derogation  of  the  common  law,  and 
their  provisions  should  therefore  be  construed  strictly  against 
those  who  sought  to  avail  themselves  of  their  benefits;  but  the 
better  doctrine  now  is  that  these  statutes  are  highly  remedial  in 
their  nature,  and  should  receive  a  liberal  construction,  to  advance 
the  just  and  beneficent  objects  had  in  view  in  their  passage.  Their 
great  aim  and  purpose  is  to  do  substantial  justice  between  the 
parties,  and  this  should  never  be  lost  sight  of  in  giving  them  a 
practical  construction.  *  *  *  The  object  of  the  law,  so  far  as 
securing  the  validity  of  the  owner  is  concerned,  when  a  material 
man  seeks  to  avail  himself  of  the  advantages,  is  that,  by  the  notice, 
the  owner  may  keep  back  enough  of  the  contract  price  to  indemnify 
himself  against  the  liability."  In  that  case  it  was  held  that,  as 
between  the  mechanic  and  the  owner,  the  lien  would  not  be  defeated 
where  the  property  was  described  as  a  three-story  brick  building 
on  lots  19  and  20,  block  No.  2,  when  it  should  have  been  block  20, 
when  the  evidence  disclosed  the  owner  had  no  other  three-story 
building  for  which  material  was  furnished  by  the  mechanic,  and 
that  he  owned  no  other  lots  than  those  in  block  20.  *  *  *  In 
Bullock  v.  Horn,  44  Ohio  St.  420,  7  N.  E.  737,  in  construing  the 
lien  law  of  that  state  this  language  was  used:  "The  statute  is 
highly  remedial  in  its  character,  and  should  receive  such  liberal 
construction  as  will  cairy  out  the  purpose  of  the  legislature  in 
its  enactment.    The  labor  of  the  workmen  and  the  material  of  the 


358  Cases  on  Personal  Property 

material  man  having  contributed  to  the  erection  of  the  structure, 
— having,  indeed,  created  in  part  the  very  property  on  wnich  the 
lien  is  sought  to  be  attached, — the  purpose  of  the  law  is  to  give 
to  such  parties  the  right,  where  the  contractor  refuses  to  pay,  to 
be  paid  for  their  labor  and  material  out  of  the  fund  which  has 
been  earned  under  the  contract,  and  out  of  the  structure  and  the 
land  upon  which  it  stands;  such  claim,  as  to  amount,  not  to  be 
in  excess  of  the  claim  of  the  contractor  as  measured  alone  by  the 
contract  and  his  performance  of  it."  And  it  is  held  the  statute 
should  be  given  such  a  construction  as  would  carry  out  its  object. 
It  may  be  difficult  to  harmonize  all  of  the  language  in  these  deci- 
sions. It  seems  to  me,  however,  that  the  rule  is  correctly  stated 
in  Jones,  Liens,  §  1554,  where  it  is  said :  ' '  The  rule  of  construc- 
tion applicable  to  questions  arising  under  these  liens  may  be  strict 
at  one  stage  of  the  proceedings  and  liberal  at  another.  Mechanics' 
liens  are  in  derogation  of  the  conunon  law,  depending  for  their 
existence  wholly  upon  statutes,  and  therefore  upon  the  question 
whether  a.  lien  attaches  at  all  a  strict  construction  is  proper." 
Section  1556  of  the  same  author  reads:  "But,  after  the  lien  has 
attached,  a  liberal  construction  should  be  put  upon  the  statute, 
for  the  purpose  of  fulfilling  its  objects.  The  statute  is  highly 
remedial  in  its  nature,  and  should  receive  a  practical  and  reasonable 
construction  to  effect  its  objects." 

All  of  the  proceedings  required  by  the  statute  to  create  a  lien, 
up  to  the  time  when  proceedings  were  about  to  be  instituted  to 
enforce  the  lien,  had  been  taken.  The  statute  does  not  require 
the  filing  of  proof  of  service  of  notice  in  order  to  establish  the  lien, 
but  simply  makes  that  a  prerequisite  to  the  proceedings  to  enforce 
the  lien.  The  object  of  a  notice  to  the  landowner  is  to  prevent  him 
from  paying  the  principal  contractor.  *  *  *  The  case  would 
be  very  different  if  he  was  an  intervening  lienor  or  a  subsequent 
purchaser.  He  had  all  the  notice  that  it  was  possible  to  give,  and 
I  do  not  see  how  he  can  complain  of  a  failure  to  file  proof  of  the 
service  of  a  notice  upon  him  with  the  register  of  deeds.  I  think 
all  of  the  essentials  of  the  statute,  so  far  as  they  relate  to  him, 
have  been  met.  *  *  *  The  demurrer  should  have  been  over- 
ruled. 

The  decree  is  reversed,  and  defendant  Schmidt  is  given  20  days 
in  which  to  answer.^^ 

16  The  statute  creating  a  mechanic's  lien,  being  in  derogation  of  the  common 
law,  should  be  strictly  construed.  Newell  v.  Campbell  Machine  Co.,  17  E.  I. 
74,  20  Atl.  158. 


Transfer  of  Property  by  Act  of  the  Parties         359 

Gifts. 

Definition,  Classificaticrn. 

WALSH'S  APPEAL. 

122  Pa.  St.  177,  15  Atl.  470,  9  Am.  St.  83,  1  L.  R.  A.  535.     1888. 

[Margaret  Tyrrell  was  a  depositor  in  the  Philadelphia  Saving 
Fund  Society.  Her  deposits  were  held  by  the  bank  under  the  rules 
of  the  law  merchant  and  the  regulations  peculiar  to  this  institution. 
During  her  last  sickness  she  handed  her  bank  book  to  one  Thomas 
Doyle,  telling  him  that  in  case  she  died  the  money  was  to  go  to 
her  sister,  Catherine  Tyrrell,  in  Ireland,  but  in  case  she  did  not 
die,  she  wanted  it  back.  Margaret  Tyrrell  died  and  the  court 
awarded  her  sister,  Catherine,  the  money,  whereupon,  Nellie  J. 
Walsh,  the  administratrix  of  Margaret  Tyrrell's  estate,  appealed.] 

Williams,  J. — A  gift  is  more  than  a  purpose  to  give,  however 
clear  and  well  settled  the  purpose  may  be.  It  is  a  purpose  executed. 
It  may  be  defined  as  the  voluntary  transfer  of  a  chattel  completed 
by  the  delivery  of  possession.  It  is  the  fact  of  delivery  that  con- 
verts the  unexecuted  and  revocable  purpose  into  an  executed  and 
therefore  irrevocable  contract.  All  gifts  are  necessarily  inter  vivos, 
for  a  living  donor  and  donee  are  indispensable  to  a  valid  donation ; 
but  whon  the  gift  is  prompted  by  the  belief  of  the  donor  that  his 
death  is  impending,  and  is  made  as  a  provision  for  the  donee,  if 
death  ensues,  it  is  distinguished  from  the  ordinary  gift  inter  vivos, 
and  called  donatio  -causa  mortis.  But  by  whatever  name  called, 
the  elements  necessary  t(5  a  complete  gift  are  not  changed. 

There  must  be  a  purpose  to  give ;  this  purpose  must  be  expressed 
in  words  or  signs;  and  it  must  be  executed  by  the  actual  delivery 
of  the  thing  given  to  the  donee  or  someone  for  his  use;  in  every 
valid  gift  a  present  title  must  vest  in  the  donee,  irrevocable  in  the 

Contra:    Shaw  et  al.  v.  Young  et  al.,  87  Me.  271,  32  Atl.  897. 

A  homestead  is  subject  to  mechanic's  lien  the  same  as  other  property. 
McAlister  v.  Des  Eocherg  et  al.,  132  Mich.  391,  93  N.  W.  887;  Darlinfr  v. 
Ncumister,  99  Wis.  426,  75  N.  W.  175;  Bonner  v.  Minnier  et  al.,  13  Mont.  269, 
34  Pac.  30,  40  Am.  St.  Rep.  449. 

Contra:  Coleman  v.  Ballandi,  22  Minn.  144;  Morgan  et  al.  v.  Beuthein  et  al., 
10  S.  Dak.  650,  75  N.  W.  204,  66  Am.  St.  Rep.  733. 

Mechanic's  lien  will  not  attach  where  buihlinfj  is  destroyed  before  comple- 
tion.    Goodman  et  al.  v.  Baerlocher,  88  Wis.  287,  60  N.  W.  415. 

For  scope  of  farm  laborer's  lien  see  Lowe  v.  Abrahamson  et  al.,  18  N.  Dak. 
182,  119  N.  W.  241,  19  L.  R.  A.  (N.  S.)  1039. 


360  Cases  on  Personal  Property 

ordinary  case  of  a  gift  inter  vivos,  revocable  only  upon  the  recov- 
ery of  the  donor  in  gifts  causa  ^lortis.  Wells  v.  Tucker,  3  Binn. 
366 ;  Nicholas  v.  Adams,  2  Whart.  17 ;  6  Bae.  Abr.  p.  162. 

The  thing  given  must  be  susceptible  of  delivery.  In  the  ease  of 
money  on  deposit,  or  loaned  out,  the  certificate  of  deposit,  or  the 
bill,  note,  or  bond  may  be  delivered  properly  indorsed,  and  it  will 
confer  on  the  donee  an  absolute  title  to  the  fund  represented  by  it. 
But  if  there  remains  something  for  the  donor  to  do  before  the  title 
of  his  donee  is  complete,  the  donor  may  decline  the  further  per- 
formance and  resume  his  own.  This  is  true  of  both  classes  of  gifts, 
and  there  can  be  no  good  reason  for  distinguishing  between  them 
in  this  particular.    Scott  v.  Lauman,  104  Pa.  593. 

As  to  gifts  inter  vivos,  it  was  distinctly  held  in  Bond  v.  Bunting, 
78  Pa.  210,  that  an  assignment  or  some  equivalent  instrument  was 
necessary  in  order  to  pass  title  to  a  chose  in  action.  The  reason 
is  that  a  gift  is  incomplete  which  does  not  clothe  the  donee  with 
the  rights  and  powers  of  ownership,  and  these  rights  and  powers 
do  not  vest  without  a  complete  delivery.  Michener  v.  Dale,  23  Pa. 
59;  Fross'  Appeal,  105  Pa.  258. 

In  the  case  of  Basket  v.  Hassell,  107  U.  S.  602  [27  L.  Ed.  500], 
a  certificate  of  deposit  was  indorsed:  *'Pay  Martin  Basket,  no 
one  else,  then  not  till  my  death,"  and  so  indorsed  it  was  delivered 
to  the  donee;  but  it  was  held  that  no  valid  donatio  causa  mortis 
was  shown,  because  a  delivery  of  the  certificate  with  the  indorse- 
ment did  not  clothe  the  donee  with  the  rights  and  powers  of  an 
owner.  The  certificate  was  put  into  the  hands  of  the  donee,  but 
he  was  unable  to  make  use  of  it,  because  of  the  limitation  in  the 
assignment. 

So  in  Mitchell  v.  Smith  [10  L.  T.  N.  S.  520,  801],  the  indorse- 
ment upon  the  certificate  was :  ' '  Pay  the  within  contents  to  Simon 
Smith  or  his  order  at  my  death, ' '  and  delivery  of  the  indorsed  cer- 
tificate was  made ;  but  the  gift  was  held  to  be  incomplete,  because 
no  present  control  over  the  fund  passed  to  the  donee.  If  the  cer- 
tificate had  been  payable  to  bearer,  mere  delivery  would  have  been 
enough  to  pass  the  title;  and  it  has  been  held  that  in  the  case  of 
notes  and  other  instruments  payable  to  order  a  delivery  accompanied 
by  words  imputing  a  present  absolute  gift  would  invest  the  donee 
with  the  ownership  of  the  fund. 

The  reason  for  this  holding  seems  to  be  that  the  certificate,  bill 
or  note  is  the  legal  evidence  of  the  deposit  or  debt,  and  that  when 
the  owner  parts  with  the  instrument  by  gift  or  sale  he  parts,  at 
least  prima  facie,  with  the  debt  or  deposit.     The  production  of 


Transfer  op  Property  by  Act  of  the  Parties         361 

the  instrument  or  proof  of  its  destruction  or  loss  is  indispensable 
to  a  recovery  of  the  demand  it  represents,  and  the  owner  by  his 
gift  of  the  note  parts  with  his  own  power  over  the  debt  of  which  it 
is  the  evidence. 

In  the  case  at  bar  Margaret  TjTrell  was  a  depositor  in  the  Phila- 
delphia Saving  Fund  Society.  Her  deposits  were  held  by  the  bank 
under  the  rules  of  the  law  merchant  and  the  regulations  peculiar 
to  this  institution.  During  her  last  sickness  she  handed  her  bank 
book  to  Thomas  Doyle,  saying :  ' '  The  money  there  is  for  my  sister 
in  Ireland;  but  if  I  don't  die  I  want  it  back."  Our  question  is 
whether  this  passed  the  title  to  the  fund  in  the  hands  of  the  bank 
as  a  donatio  causa  mortis.  This  depends  to  some  extent  upon  the 
character  of  a  depositor's  bank  book. 

"When  a  deposit  is  made  in  a  bank,  the  depositor  is  credited  upon 
the  books  of  the  bank  with  the  amount  deposited,  and  a  duplicate 
entry  of  credit  is  made  upon  the  bank  book  in  his  hands.  He  thus 
has  at  all  times  a  statement  of  his  credits  in  his  account  with  the 
bank.  His  debits  he  may  keep  in  any  convenient  manner.  Or, 
if  the  rules  of  the  bank  require  it,  he  may  present  his  book  with 
each  check  that  the  debits  may  be  entered  by  the  officers  of  the 
bank.  The  book  is  at  most  a  statement  of  an  account,  showing 
how  much  has  been  deposited  by  the  customer  to  be  held  by  the 
bank  upon  the  terms  which  the  law  or  the  agreement  between  the 
parties  has  provided.  When  withdrawn  it  is  by  means  of  checks, 
orders  or  such  other  form  of  voucher  as  the  terms  of  the  deposit 
or  the  usages  of  the  institution  may  provide  for.  The  mere  pos- 
session of  the  book  by  the  bank  would  afford  no  evidence  of  the 
payment  of  the  money  to  the  depositor.  An  assignment  of  such  a 
book,  like  an  assignment  of  a  book  of  original  entry,  will  operate 
to  transfer  the  entire  balance  remaining  due  upon  the  account ; 
but  a  delivery  of  it  will  no  more  transfer  the  fund  than  will  a  deliv- 
ery of  a  book  of  original  entries  transfer  the  balances  due  upon 
the  several  accounts  contained  therein. 

This  is  substantially  decided  in  People's  Sav.  Bank  v.  Cupps, 
91  Pa.  315.  Mrs.  Cupps  placed  her  bank  book  in  the  hands  of  her 
son.  He  presented  it  at  the  bank,  together  with  a  forged  check 
in  his  own  favor,  and  the  fund  was  paid  to  hira,  ]\Irs.  Cupps 
brought  suit  to  recover  the  amount  of  her  deposits,  and  the  bank 
set  up  the  possession  of  the  book  by  the  son  and  its  production  by 
hira,  when  the  check  was  presented,  as  a  defense.  This  defense, 
however,  did  not  avail,  and  the  plaintiff  was  permitted  to  recover 
from  the  bank. 


362  Cases  on  Personal,  Property 

When  Margaret  Tyrrell  handed  her  book  to  Mr.  Doyle,  saying, 
"The  money  there  is  for  my  sisterj"  she  did  not  invest  her  sister 
or  Doyle  as  her  representative  with  any  control  over  the  fund. 
The  ownership  did  not  pass  out  of  her.  There  was  no  delivery 
of  a  check,  order,  assignment  or  other  instrument  which  would 
have  served  as  a  voucher  if  the  money  had  been  paid  by  the  bank, 
or  by  means  of  which  the  money  could  have  been  properly 
demanded. 

As  a  gift  inter  vivos  it  was  not  good,  for  the  control  of  the  donor 
over  the  fund  continued.  In  Duffield  v.  Elwes,  1  Bligh.  N,  R.  527, 
a  distinction  was  taken  between  gifts  inter  vivos  and  those  made 
causa  mortis,  to  which  our  attention  has  been  drawn.  It  was  there 
said:  "I  apprehend  that  really  the  question  does  not  turn  at  all 
upon  what  the  donor  could  do,  or  what  the  donor  could  not  do; 
but,  if  it  was  a  good  donatio  causa  mortis,  what  the  donee  of  that 
donor  could  call  upon  the  representatives  of  the  donor  to  do  after 
the  death  of  that  donor."  If  this  is  to  be  understood,  as  is  urged 
in  the  argument,  that  the  personal  representatives  of  a  decedent 
may  be  compelled  to  complete  a  gift  which  was  left  incomplete 
by  the  alleged  donor,  we  can  not  assent  to  the  doctrine ;  nor  do  we 
quite  understand  what  is  meant  by  the  passage  from  the  opinion 
cited.  If  the  gift  was  "a  good  donatio  causa  mortis"  then  nothing 
remained  to  be  done  by  the  donor  that  was  essential  to  the  vesting 
of  title  in  his  donee ;  and  the  converse  of  the  proposition  is  equally 
clear:  that  if  anything  remained  to  be  done  by  the  donor  which 
was  essential  to  complete  his  donee 's  title,  it  was  not  a  good  donatio, 
but  an  unexecuted,  possibly  an  abandoned,  purpose  to  give. 

If,  therefore,  the  case  presented  was  that  of  a  good  donatio, 
the  only  questions  that  could  be  raised  between  the  donee  and  the 
personal  representatives  of  the  donor  would  be  those  relating  to 
matters  of  form,  affecting,  not  the  title  of  the  donee,  but  the  use 
of  appropriate  remedies  against  third  persons  for  the  recovery  of 
the  gift.  If  it  was  not  a  good  donatio  the  courts  would  have  no 
jurisdiction.  The  estates  of  those  who  can  no  longer  speak  for 
themselves  stand  in  much  greater  need  of  protection  than  living 
property  owners,  and  it  is  not  possible  that  a  chancellor  would 
compel  an  executor  or  administrator  to  complete  a  gift  by  the 
doing  of  any  act  which  the  alleged  donor,  if  living,  might  have 
refused  to  do,  and  thereby  revoked  his  purpose  to  give.  In  the 
case  of  a  book  of  original  entries — a  bank  book — an  executory  con- 
tract, and  the  like,  where  the  possession  of  the  document  affords 
no  presumption  of  ownership,  something  more  is  necessary  than 


Transfeb  of  Property  by  Act  of  the  Parties         363 

the  manual  delivery  of  the  book  or  paper  in  order  to  make  a  valid 
gift.  The  title  must  pass  out  of  the  donor  in  his  lifetime  or  it 
can  never  reach  the  donee. 

Judgment  reversed.^'' 


Inter  Vivos. 

LOVE  V.  FRANCIS  et  al. 

63  Midi.  81,  29  N.  W.  843.    1886. 

The  facts  are  stated  in  the  opinion. 

Champlin,  J. — On  April  28,  1866,  Cyrus  K.  Francis  was  the 
owner  in  fee  of  49  acres  of  land  situated  in  the  township  of  Texas, 
Kalamazoo  county,  Michigan.  He  had  four  children  living  at  that 
time,  namely,  Theodore  and  Charlemagne  Francis,  Harriet  Bell, 
and  Elizabeth  Barrett.  Another  of  his  daughters  had  died,  leaving 
two  children,  who  were  then  living,  named  Byron  H.  Fox  and 
Estella  Brown.  These  persons  were  his  heirs  at  law  at  the  time 
of  his  death,  which  occurred  on  the  eighteenth  day  of  March,  1880. 
On  the  said  twenty-eighth  day  of  April,  ]866,  Cyrus  K.  Francis 
conveyed  by  deed  to  his  son  Charlemagne  Francis  the  49  acres  of 
land.  The  consideration  expressed  in  the  deed,  although  nothing 
was  paid  down,  was  $1,600.  Upon  the  receipt  of  this  conveyance, 
Charlemagne  Francis  made  and  delivered  to  his  father  Cyrus  K., 
his  promissory  note  as  follows : 

Kalamazoo,  April  28,  1866. 
* '  For  value  received,  I  promise  to  pay  to  the  legal  heirs  of  Cyrus 
K.  Francis,  four  years  after  his  death,  sixteen  hundred  dollars, 
V/ith  7  per  cent,  interest  per  annum,  and  payable  annually  to  the 
said  Cyrus  K.  Francis  during  his  natural  life-time;  at  his  death 
the  interest  to  cease.  The  payment  of  this  note  is  secured  by  mort- 
gage on  real  estate  of  even  date  herewith,  and  stamped  with  revenue 
stamp  of  two  dollars.  Charlemagne  Francis." 

To  secure  the  payment  of  this  note,  on  the  same  day  Charlemagne 
made,  executed,  and  delivered  to  Cyrus  K.  Francis  a  mortgage  cov- 
ering the  same  lands  conveyed  to  him  by  his  father,  in  which  it  is 

"See  Childs'  Personal  Property,  §§218,  224,  228,  229. 


364  Cases  on  Personal.  Property 

stated  tliat  the  mortgage  was  made  to  secure  a  part  of  the  purchase 
money  for  the  premises  therein  described.  The  mortgage  contains 
the  usual  power  of  sale  in  case  of  default.  Cyrus  K.  Francis  caused 
this  mortgage  to  be  recorded  on  the  twenty-eighth  day  of  April, 
1866,  but  retained  possession  of  the  note  until  his  death.  Charle- 
magne Francis  went  into  possession  of  the  property  conveyed  to 
him,  and  thereafter  paid  to  Cyrus  K.  Francis  the  annual  interest 
as  it  matured  upon  the  note  for  the  years  1867,  1868,  and  1869. 
For  the  three  years  following,  Charlemagne  neglected  to  pay  the 
interest.  In  July,  1872,  there  was  due  for  unpaid  interest  $336, 
and  Cyrus  K.  Francis  commenced  a  suit  in  the  circuit  court  for 
the  county  of  Kalamazoo  in  chancery  to  foreclose  the  mortgage. 
In  this  suit  Cyrus  K.  Francis  was  the  sole  complainant,  and  Charle- 
magne was  the  sole  defendant.  Personal  service  of  subpoena  to 
appear  and  answer  was  had,  and  a  decree  for  a  foreclosure  by  sale 
was  duly  entered  for  the  interest  due.    *    *    * 

The  decree  was  entered  March  6,  1873,  and  authorized  a  sale  of 
the  mortgaged  premises  if  the  amount  reported  due  was  not  paid 
by  July  15,  1873.  On  June  14,  1873,  Charlemagne  Francis  sold  and 
assigned  his  interest,  which  he  then  had  as  heir  at  law  of  Cyrus 
K.  Francis,  in  the  sum  of  $1,600,  payable  to  the  heirs  of  Cyrus  K. 
Francis,  and  secured  by  said  mortgage  to  the  complainant,  and  on 
the  sixteenth  of  June,  1873,  said  Charlemagne  sold  and  conveyed 
the  mortgaged  premises  to  the  complainant.  This  conveyance  was 
subject  to  the  mortgage  above  referred  to,  and  was  conditional  that 
complainant  should  pay  the  mortgage  as  so  much  purchase  money 
for  the  premises.  Complainant  has  paid  the  amount  found  due  by 
the  decree,  and  has  paid  all  interest  on  the  note  up  to  the  time  of 
the  death  of  Cyrus  K.  Francis.  Upon  the  death  of  Cyrus,  Theodore 
Francis  was  appointed  administrator  of  his  estate.    *    *    * 

In  February,  1885,  the  complainant  filed  his  bill  of  complaint, 
setting  forth  substantially  most  of  the  facts  above  narrated,  and 
alleging  that  the  defendant  Theodore  claimed  that  the  moneys 
secured  by  the  note  and  mortgage  belonged  to  the  estate  of  Cyrus 
K.  Francis,  and  should  be  paid  to  him  as  the  administrator  thereof ; 
that  the  other  defendants  claimed  that  said  moneys  belonged  to 
the  heirs  of  the  said  Cyrus,  and  should  be  paid  to  them  without 
passing  through  the  hands  of  the  administrator ;  asserts  that  he  is 
and  has  always  been  willing  to  pay  said  heirs  or  administrator,  or 
both,  said  $1,600,  except  the  share  thereof  assigned  to  himself  by 
Charlemagne;  prays  that  defendants  may  interplead,  and  settle 
between  themselves  to  whom  the  money  belongs,  and  asks  leave 


Transfer  of  Property  by  Act  op  the  Parties         365 

to  redeem  the  premises  from  said  mortgage,  and  to  pay  the  redemp- 
tion monej^  into  court,  and  that  the  mortgage  may  be  discharged. 

Defendants  Theodore  Francis,  Harriet  Bell,  and  Elizabeth  Bar- 
rett answer,  admitting  the  facts  alleged  in  the  bill,  except  that  they 
say  that  the  making  of  said  conveyance  by  Cyrus  K.  Francis  to 
Charlemagne,  and  taking  the  note  and  mortgage  from  him  in  the 
manner  provided,  was  in  pursuance  of  the  purpose  then  enter- 
tained by  Cyrus  K.  Francis  in  his  life-time  to  distribute  the  avails 
of  this  real  estate  after  his  death.    *    *    * 

The  defendants  Byron  H.  Fox  and  Estella  Brown  answered  sepa- 
rately, and  admit  the  facts  charged  in  the  bill  of  complaint,  and 
claim  that  they  are  entitled,  as  two  of  the  heirs  at  law  of  Cyrus 
K.  Francis,  to  the  same  share  of  the  avails  of  said  note  that  their 
deceased  mother  would  have  been  entitled  to  if  living. 

The  cause  was  heard  in  the  court  below  upon  proofs  taken  in 
open  court,  and  a  decree  was  rendered  therein  on  the  sixth  day 
of  January,  A.  D.  1886,  that  the  said  sum  of  $1,600  now  belongs 
to  the  persons  who  were  the  children  and  grandchildren  of  Cyrus 
K.  Francis  at  the  date  of  the  mortgage,  or  their  legal  representatives 
in  case  of  the  death  of  any,  and  that  complainant,  by  assignment 
from  Charlemagne  Francis,  stands  in  his  place  and  stead,  and 
succeeds  to  his  share  of  said  sum  of  $1,600  and  interest;  that  com- 
plainant be  allowed  to  redeem  by  paying  into  the  hands  of  the 
register  of  the  court,  on  or  before  three  months,  the  said  sum  of 
$1,600  and  interest;  and  that  thereupon  said  mortgage  be  dis- 
charged. *  *  *  It  was  further  decreed  that  Theodore  Francis, 
as  administrator  of  the  estate  of  Cyrus  K.  Francis,  deceased,  had 
no  interest  whatever  in  said  mortgage  debt. 

From  this  decree  Theodore  Francis,  on  the  tenth  day  of  Febru- 
ary, 1886,  filed  his  claim  of  appeal,  and  executed  the  proper  bond. 
*  *  *  Our  investigation  into  the  merits  of  the  whole  controversy 
leads  us  to  the  conclusion  that  the  decree  below  is  correct,  and 
should  be  affirmed. 

Cyrus  K.  Francis,  in  his  life-time,  being  the  owner  of  49  acres 
of  land,  wished  to  reserve  to  himself  the  income  arising  therefrom 
during  his  life,  and  to  give  the  avails  thereof  to  his  heirs.  One 
object  was  to  prevent  the  distribution  thereof  through  the  ordinary 
channel  of  the  probate  court,  and  to  make  distribution  thereof  by 
his  own  hand  during  his  life.  To  accomplish  this  object  he  con- 
verted the  land  into  personalty,  by  conveying  the  same  to  Charle- 
magne Francis,  and  taking  from  him  a  promissory  note  for  $1,600, 
payable  to  the  heirs  of  Cyru.s  four  years  after  the  decease  of  him- 


366  Cases  on  Personal  Property 

self.  Interest  at  7  per  cent,  per  annum  was  to  be  paid  to  Cyrus, 
but  was  to  cease  upon  his  death.  The  payment  of  the  principal 
and  interest  according  to  the  note  was  secured  by  a  mortgage  upon 
the  property  sold,  which  Cyrus  placed  of  record.  The  only  question 
is  whether  the  disposition  thus  made  of  the  $1,600  constituted  a 
valid  gift  inter  vivos  to  the  heirs.  That  such  was  the  intention 
there  can  be  no  doubt  from  the  transaction  itself.  To  constitute 
a  valid  gift  mter  vivos  there  must  be  a  delivery  of  the  thing  given, 
either  actual  or  constructive.  It  is  not  necessary  that  it  be  deliv- 
ered to  the  person  intended  directly.  It  may  be  delivered  to  some 
person  for  him,  or  to  a  trustee  for  that  purpose,  and  in  all  cases 
such  a  disposition  of  it  must  be  made  in  favor  of  the  donee  as 
effectuates  the  object  and  places  the  jus  disponendi  beyond  the 
power  of  the  donor  to  recall.  Under  some  circumstances  the  donor 
himself  may  constitute  himself  trustee  of  the  thing  for  the  benefit 
of  the  donee.  Ellis  v.  Secor,  31  Mich.  186 ;  Green  v.  Langdon,  28 
Mich.  221. 

Such  was  the  case  here.  The  donor  retained  an  interest  in  the 
avails  of  the  fund  given  by  way  of  the  interest  payable  thereon 
during  his  life.  The  interest  of  the  donor  made  it  necessary,  in 
the  form  he  saw  fit  to  adopt  to  carry  out  his  purpose,  to  retain  the 
actual  possession  of  the  note  for  his  own  security,  but  the  same 
instrument  evidenced  the  gift  to  his  heirs  as  the  designated  object 
of  his  bounty.  He  had  placed  the  mortgage  on  record,  and  had 
done  all  he  could  to  make  delivery  consistent  with  his  own  rights 
in  the  paper,  and  was,  by  the  transaction,  a  trustee  for  the  heirs 
in  the  custody  of  the  instrument  by  implication  of  law.  It  requires 
less  positive  and  unequivocal  testimony  to  establish  the  delivery  of 
a  gift  from  a  father  to  his  children  than  it  does  between  persons 
who  are  not  related,  and  in  cases  where  there  is  no  suggestion  of 
fraud  or  undue  influence  very  slight  evidence  will  suffice.  In  this 
case  there  were  several  donees.  A  manual  delivery  could  not  be 
made  of  the  instrument  to  all,  but  a  constructive  delivery  was 
effected  by  making  them  the  payees  of  the  note,  and  recording  the 
mortgage  by  which  it  was  secured.  By  directing  the  note  to  be 
made  payable  to  his  heirs  he  placed  the  title  in  them  at  once,  and 
it  was  unimportant  in  whose  possession  or  custody  the  paper  ought 
to  remain.  Whoever  might  hold  such  possession  would  do  so  in 
trust  for  them,  and  they  alone  could  enforce  payment. 

In  Wyble  v.  McPheters,  52  Ind.  393,  where  A.  delivered  several 
United  States  bonds  to  B.  with  directions  for  the  latter  to  give  the 
same  to  certain  of  his  children  at  his  death,  B.  received  them,  and 


Transfer  of  Property  by  Act  of  the  Parties  367 

agreed  to  execute  the  trust.  It  was  held  that  this  was  a  sufficient 
delivery  to  constitute  a  gift  intej-  vivos,  and  that  upon  the  death 
of  A.  an  action  would  lie  against  B.  in  favor  of  the  children  of  A. 
to  compel  him  to  execute  the  trust,  and  also  against  the  adminis- 
trator of  A.  to  whom  B.  had  delivered  the  bonds. 

Where  H.  had  loaned  to  his  adopted  son  large  sums  of  money, 
and  taken  his  notes,  which  he  afterwards  indorsed  to  his  adopted 
son,  but  retained  possession  until  the  civil  war,  when  he  delivered 
them,  with  other  notes,  to  the  son  to  conceal,  which  he  did  in  the 
house  of  the  holder,  where  they  remained  until  after  the  death 
of  H.,  it  was  held  that  the  notes  were  an  irrevocable  gift  to  the 
adopted  son.    Trowell  v.  Carraway,  10  Heisk.  104. 

In  Richardson  v.  Lowry,  67  Mo.  411,  it  was  held  that  a  note 
taken  by  the  husband  on  a  sale  of  his  property,  payable  to  his 
wife,  was  prima  facie  evidence  of  a  gift  to  her. 

In  Malone's  Estate,  13  Phila.  313,  it  was  held  any  act  on  the 
part  of  the  owner  of  a  chose  in  action,  showing  not  only  a  present 
intention  to  transfer,  but  that  he  regarded  himself  as  having  car- 
ried his  intention  into  effect,  is  sufficient,  without  written  evidence 
of  the  transaction,  and  that  there  is  no  difference  between  gifts 
causa  mortis  and  gifts  inter  vivas.  See,  also,  as  bearing  upon  the 
question.  Barker  v.  Frye,  75  lie.  29 ;  Fletcher  v.  Fletcher,  55  Vt. 
325;  Eastman  v.  Woronoco  Sav.  Bank,  136  Mass.  208;  Scott  v. 
Berkshire  Co.  Sav.  Bank,  140  Mass.  157;  S.  C.  2  N.  E.  Rep.  925; 
Basket  v.  Hassell,  107  U.  S.  602;  S.  C.  2  Sup.  St.  Rep.  415. 

Under  these  circumstances  there  was  a  constructive  delivery 
of  the  note  and  mortgage,  and  all  the  delivery  that  could  have  been 
made  in  the  nature  of  the  case.    *    *    * 

The  acceptance  of  a  gift  need  not  be  made  immediately.  It  is 
sufficient  that  it  be  accepted  before  revoked  by  death  or  otherwise. 
The  fact  that  Charlemagne  sold  and  assigned  his  interest  in  the 
sum  payable  to  the  heirs  to  the  complainant  seven  years  or  more 
before  the  death  of  said  Cyrus  is  evidence  of  acceptance,  and,  the 
gift  being  to  him  jointly  with  the  other  heirs,  such  acceptance 
being  beneficial,  inures  to  their  benefit.    *    *    * 

The  relief  granted  by  the  court  below  is  consistent  with  the 
views  above  expressed,  and  the  decree  appealed  from  will  be 
affirmed,  with  eosts.^^ 

18  See  Childs'  Personal  Property,  §228. 


368  Cases  on  Personal  Property 

Causa  Mortis. 
HATCHER  V.  BUFORD. 
60  Arh.  169,  29  8.  W.  641,  27  L.  R.  A.  507.     1895. 
The  facts  as  stated  by  the  court  are  as  follows : 

T.  A.  Hatcher,  a  prosperous  merchant  of  Forrest  City,  Ark., 
died  December  10,  1891.  He  had  never  had  any  children,  but 
left  a  widow,  M.  E.  Hatcher,  the  appellant.  About  two  months 
prior  to  his  death,  he  sold  an  interest  in  his  store  to  Walter  Buford, 
his  nephew,  taking  in  payment  therefor  notes  of  the  said  Walter 
amounting  to  $2,500.  These  notes  Hatcher  indorsed  to  his  sister 
Mrs.  A.  B.  Buford,  and  mailed  them  to  her  on  the  9th  of  October, 
1891.  About  one  month  before  his  death,  Hatcher  directed  his 
agent  to  buy  $4,000  of  bank  stock,  and,  about  10  days  before, 
$1,000  more.  This  stock  was  issued  in  the  name  of  Mrs.  Buford, 
and  was  delivered  by  Hatcher's  agent  to  her  son  Walter.  Hatcher 
made  a  will,  in  which,  among  other  bequests,  was  a  provision  for 
his  wife,  and  Mrs.  Buford  was  declared  residuary  legatee  and 
devisee.  Appellant's  bill  (omitting  non-essentials)  sets  up  a  renun- 
ciation of  the  will,  and  that  the  disposition  of  the  notes  and  bank 
stock  in  the  manner  indicated  was  done  with  intent  to  defeat  appel- 
lant's dower,  and  was  fraudulent;  that  the  lands  of  which  her 
husband  died  seised  were  a  new  acquisition.  She  prays  to  be 
endowed  of  half  the  notes  and  bank  stock,  also  of  half  the  fee  in 
the  real  estate.  The  answer  denied  the  fraud,  claimed  an  absolute 
gift  of  the  personalty,  and  that  dower  in  the  realty  should  be  of 
one  half  for  life.  The  decree  refused  dower  in  the  notes  and  bank 
stock,  but  granted  it  in  one  half  the  real  estate  in  fee.  Both  par- 
ties have  appealed,  and  the  issues  presented  by  this  record  are: 
First.  Was  there  a  gift  ?  Secmd.  If  a  gift,  was  it  inter  vivos  or 
causa  mortis?  TTiird.  If  a  gift  causa  mortis,  did  it  defeat  the 
widow's  dower?    *    *    * 

Wood,  J.— 1.  Was  there  a  gift?  The  only  controversy  on  this 
point  was  as  to  the  delivery.  Delivery,  of  course,  is  essential  to  a 
gift.  *  *  *  The  evidence  supports  the  finding  of  the  chancellor 
that  there  was  a  gift  of  the  bank  stock  and  notes. 

2.  Was  the  gift  inter  vivos  or  causa  mortis?  The  donatio  inter 
vivos,  as  its  name  imports,  is  a  gift  between  the  living.    It  is  per- 


Transfer  of  Property  by  Act  op  the  Parties         369 

fected  and  becomes  absolute  during  the  life  of  the  parties.  The 
donatio  causa  mortis,  literally,  "is  a  gift  in  view  of  death."  But 
this  does  not  give  us  an  adequate  conception  of  the  gift  as  it  is 
understood  and  treated  by  the  authorities.  "We  find  from  an  exami- 
nation of  these  that  where  one,  in  anticipation  of  death  from  a 
severe  illness  then  afflicting  him,  or  from  some  imminent  peril  to 
his  life,  to  which  he  expects  to  be  exposed,  makes  a  gift  accompanied 
by  the  delivery  of  the  thing  given  either  actual  or  symbolic,  which 
is  accepted  by  the  donee,  the  law  denominates  such  a  gift  a  "donatio 
caiisa  mortis."  *  *  *  But  it  must  not  be  forgotten  that  an  abso- 
lute gift — one  inter  vivos — may  be  made  by  one  upon  his  deathbed, 
and  who  is  aware  of  the  near  approach  of  death  from  his  then 
ailment.  Thornton,  Gifts  &  Advancements,  §  21,  p.  24,  and  authori- 
ties cited.  Is  there  anything  in  the  proof  to  overcome  the  presump- 
tion of  gifts  causa  mortis f  As  to  the  notes,  the  testimony  shows 
that  Hatcher  was  up  and  at  his  store  on  the  day  these  were  exe- 
cuted; that  they  were  delivered  on  the  same  day;  and  that  the 
donor  was  able  to  drive  out  after  this  transaction.  *  *  *  W'e 
think  the  time  and  circumstances  of  the  gift  of  the  notes,  as  indi- 
cated by  the  proof,  supports  the  chancellor's  finding  that  this  was 
a  gift  inter  vivos.  The  same,  however,  cannot  be  said  of  the  bank 
Btock.  Hatcher  was  upon  his  deathbed,  and  unable  to  attend  to 
any  business,  when  this  was  given.  Four  thousand  was  taken  out 
about  one  month  before  his  death,  and  one  thousand  only  about 
ten  days  before.  It  was  not  delivered  until  a  few  nights  before 
his  death.  We  find  nothing  whatever  in  the  proof  to  take  the 
bank  stock  out  of  the  presumption  that  it  was  a  gift  causa  mortis, 
and  nothing  to  support  the  chancellor's  conclusion  as  to  this. 

3.  Being  a  gift  cansa  mortis,  did  it  defeat  the  widow's  dower? 
*  *  *  Was  the  donor  seised  or  possessed  of  the  bank  stock  at 
the  time  of  his  death  ?  The  terms  ' '  seised  "  or  "  possessed, ' '  as  thus 
used  with  reference  to  personalty,  mean  simply  ownership,  which 
carries  with  it  the  actual  possession,  or  a  right  to  the  immediate 
possession.  The  real  inquiry,  then,  is  as  to  when  the  title  or  prop- 
erty in  the  subject  matter  of  a  donatio  causa  'mortis  passes.  We 
are  aware  that  there  is  conflict  and  confusion  in  the  authorities 
upon  this  point,  doubtless  growing  out  of  the  modes  of  donatio 
causa  mortis  recognized  originally  by  the  Roman  jurisprudence 
whence  the  doctrine  is  derived.  Under  one  of  these,  the  subject- 
matter  of  the  gift  became  at  once  the  property  of  the  donee,  but 
on  condition  that  he  should  return  it  to  the  donor  in  the  event  of 
his  recovery.  Under  another,  the  gift  was  made  upon  condition 
C.  P.  P.— 24 


370  Cases  on  Personal  Property 

that  the  thing  given  should  become  the  property  of  the  donee  only 
in  the  event  of  the  donor's  death.  Under  the  former,  delivery  was 
essential ;  under  the  latter,  it  was  not.  Thornton,  Gifts  &  Advance- 
ments, p.  44;  Ward  v.  Turner,  2  Ves.  Sr.  431;  Abbott,  Cases  on 
Wills,  169.  Mr.  Roper,  in  his  work  on  Legacies,  tells  us  that, 
after  the  contest  upon  the  subject  had  subsided,  Justinian  gives 
a  definition  of  ^'donatio  causa  mortis,"  which  alone  is  the  proper 
one.  1  Roper  on  Legacies,  1.  Mr.  Pomeroy  quotes  this  definition, 
and  translates  it  as  follows:  "A  danatio  causa  mortis  is  that 
which  is  made  in  expectation  of  death;  as  when  anything  is  so 
given  that,  if  any  fatal  accident  befalls  the  donor,  the  person  to 
wh,om  it  is  given  shall  have  it  as  his  own ;  but  if  the  donor  should 
survive,  or  if  he  should  repent  of  having  made  the  gift,  or  if 
the  person  to  whom  it  has  been  given  should  die  before  the  donor, 
then  the  donor  shall  receive  back  the  thing  given."  3  Pom.  Eq. 
Jur.  §  1146.  Judge  Redfield,  in  his  work  on  Wills,  says:  "The 
conclusion  of  Justinian's  definition  seems  to  embrace  the  essen- 
tials of  the  gift,  viz.,  the  gift  is  such  that  the  donor  prefers  him- 
self to  retain  dominion  over  it  rather  than  have  the  donee  ac- 
quire it.  But  he  prefers  the  donee  should  have  it  rather  than 
his  heir."  3  Redf.  Wills,  322.  Those  authorities  which  hold 
that  the  property  in  the  thing  given  passes  upon  delivery  and 
during  the  life  of  the  donor  have  obviously  followed  the  kind 
of  donatio  causa  mortis  referred  to  supra,  existing  under  the 
Roman  law  prior  to  Justinian's  definition,  which  recognized  the 
subject-matter  of  the  gift  as  becoming  at  once  the  property  of  the 
donee,  defeasible  upon  a  condition  subsequent,  and  under  which 
delivery  was  essential.  This  is  a  formidable  position,  and  supported 
by  high  authority.  Basket  v.  Hassell,  107  U.  S.  602,  27  L.  Ed.  500 ; 
Chase  v.  Redding,  13  Gray,  418 ;  Marshall  v.  Berry,  13  Allen,  43 ; 
Thornton,  Gifts  &  Advancements,  §  46 ;  Nicholas  v.  Adams,  2 
Whart.  17;  Daniel  v.  Smith,  64  Cal.  346;  Emery  v.  Clough,  63 
N.  H.  552,  56  Am.  Rep.  543 ;  Schouler,  Pers.  Prop.  §  137 ;  Dole  v. 
Lincoln,  31  Me.  422.  Since  the  decision  of  Lord  Hardwicke  in 
Ward  V.  Turner,  2  Ves.  Sr.,  supra,  it  has  been  the  settled  law  of 
England  that  delivery  is  essential  in  gifts  causa  mortis;  and  there 
has  never  been  any  controversy  upon  that  point  in  this  country. 
Since  delivery  is  an  essential  element  to  complete  the  transfer  of 
title  or  property  in  personalty  (Schouler,  Pers.  Prop.  §87),  the 
authorities  holding  to  the  view  that  the  title  passes  and  becomes 
vested  in  the  subject-matter  of  a  domatio  causa  mortis  during  the 
life  of  the  donor  are  dominated  by  the  idea  of  delivery.    But,  while 


Transfer  of  Property  by  Act  op  the  Parties  371 

delivery  is  a  prerequisite  to  the  transfer  of  title,  it  does  not  follow 
that  there  is  always  a  transfer  of  title  where  there  is  a  delivery, 
nor  that  the  deliveiy  of  the  chattel  and  the  transfer  of  the  title 
are  coeval,  in  cases  where  the  title  is  transferred.  We  think  the 
better  doctrine  upon  the  transfer  of  the  title  to  gifts  catisa  mortis 
is  that  which  accords  with  Justinian's  definition,  and  recognizes 
the  subject-matter  of  the  gift  as  becoming  the  property  of  the 
donee  in  the  event  of  the  donor's  death;  i.  e.  the  donor's  death  is 
a  condition  precedent  to  the  vesting  of  the  title  to  the  thing  given 
in  the  donee.  This  seems  to  be  the  rule  adopted  by  the  English 
courts  of  chancery,  and  is  supported  also  by  eminent  American 
courts  and  text-writers.     *     *    * 

This  view  is  certainly  more  consonant  with-  the  conditions  which 
all  the  authorities  agree  attach  to  gifts  of  this  kind :  viz.,  that  the 
reclamation  of  the  donor,  or  his  recovery  from  existing  illness  of 
escape  from  peril  apprehended,  or  the  death  of  the  donee  before 
that  of  the  donor,  will  each,  ipso  facto,  revoke  the  gift.  Conser  v. 
Snowden,  54  JId.  175,  39  Am.  Rep.  368 ;  *  *  *.  This  doctrine 
we  have  already  approved  in  Ammon  v.  ]\Iartin,  59  Ark.  191, 
where,  in  speaking  of  donatio  causa  mortis,  we  said:  "The  title 
to  the  thing  given  remains  in  the  donor,  and  the  gift  is  subject  to 
revocation  at  any  time  prior  to  his  death."  *  *  *  gut  it  may 
be  said  that  this  view  abolishes  all  distinction  between  gifts  causa 
hiortis  and  testamentary  dispositions,  since  the  donatio  caiisa  mortis 
is  wholly  inchoate  and  conditional,  not  passing  title  until  the  donor's 
death.  I\rany  authorities  do  speak  of  the  donatio  causa  mortis  as 
but  another  form  of  testamentary  disposition,  and  liken  it  unto  the 
testamentary  disposition,  for  the  reason  that  it  is  revocable  dur- 
ing the  donor's  life,  is  subject  to  his  debts  if  there  be  a  deficiency 
of  assets,  and  does  not  become  an  absolute  gift  until  the  donor's 
death.  Jones  v.  Brown,  34  N.  H.  439;  Baker  v.  Smith,  supra; 
2  Kent  Cora.  445 ;  Schouler,  Pers.  Prop.  138.  But  while,  in  these 
particulars,  it  resembles  a  testamentary  disposition,  it  differs  from 
it,  in  that  the  subject-matter  of  the  gift  is  delivered  to  the  donee 
during  the  life  of  the  donor,  and  at  his  death  does  not  pass  into 
the  hands  of  the  executor  or  administrator,  but  remains  with  the 
donee.  This  is  not  because  the  property  or  title  has  passed  to  the 
donee  during  the  life  of  the  donor,  or  that  the  donor  is  not  actually 
seised  in  law  at  the  time  of  his  death,  but  because  it  is  one  of  the 
peculiar  characteristics  of  this  species  of  gift  that,  at  the  donor's 
death,  the  donee  takes,  instead  of  the  heir,  according  to  the  intention 
of  the  donor,  as  manifested  during  his  life   by  delivery  to  the 


372  Cases  on  Personal  Property 

donee.  *  *  *  Under  our  law,  a  man  may  deprive  his  children 
of  their  inheritance  by  his  will  if  he  names  them.  So,  also,  he  may 
deprive  them  by  a  donatio  causa  mortis.  But  he  cannot  deprive 
the  widow  of  her  dower  rights  by  either.  And  this  for  the  reason, 
in  both  instances,  that  he  dies  "seised"  of  the  property  so  con- 
veyed. This,  in  our  opinion,  is  the  only  consistent  and  logical  con- 
clusion; for  if  the  title  passes  during  the  donor's  life,  and  he  has 
the  absolute  right  to  dispose  of  his  personalty  as  he  pleases,  which 
he  has,  how  can  it  be  said  that  the  donee's  rights  are  inferior  to 

those  of  the  widow,  except  upon  the  doctrine  above  enunciated? 
*    *     * 

TJie  decree  of  the  chafncellor  is  affirmed  as  to  tJie  notes  and  real 
estate.  As  to  the  hank  stock,  it  is  reversed,  and  the  cause  is 
remanded,  with  directions  to  enter  a  decree  conforming  to  this 
opinion 


19 


Delivery. 
BASKET  V.  HASSELL. 

107  U.  S.  609,  2  Sup.  Ct.  415,  27  L.  Ed.  500.     1S83. 
The  facts  are  stated  in  the  opinion. 

Mr.  Justice  Matthews. — This  is  a  bill  in  equity,  filed  by  the 
appellee,  a  citizen  of  Tennessee,  to  which,  besides  the  appellant,  a 
citizen  of  Kentucky,  The  Evansville  National  Bank  of  Evansville, 
Indiana,  Samuel  Bayard,  its  president,  and  Henry  Reis,  its  cashier, 
and  James  W.  Shackelford  and  Robert  D.  Richardson,  attorneys 
for  Basket,  citizens  of  Indiana,  were  made  parties  defendant.  The 
single  question  in  the  case  was,  whether  a  certain  fund,  represented 
by  a  certificate  of  deposit,  issued  by  the  bank  to  Chancy  in  his  life- 
time, belonged  to  Basket,  who  claimed  it  as  a  gift  from  Chancy, 
having  possession  of  the  certificate,  or  to  the  apellee,  as  Chancy 's 
administrator.  Basket  asserted  his  title,  not  only  by  answer  but 
by  a  cross-bill.  The  final  decree  ordered  the  certificate  of  deposit 
to  be  surrendered  to  the  complainant,  and  that  the  bank  pay  to 
the  complainant,  as  its  holder,  the  amount  due  thereon.  The 
money  was  then  tendered  by  the  bank,  in  open  court,  and  the  cer- 
tificate was  deposited  with  the  clerk.    It  was,  thereupon,  ordered, 

19  See  Childs'  Personal  Property,  §§224,  229. 


Transfer  of  Property  by  Act  of  the  Parties         373 

Basket  having  prayed  an  appeal,  that,  until  the  expiration  of 
the  time  allowed  for  filing  a  bond  on  appeal,  the  bank  should  hold 
the  money  as  a  deposit,  at  four  per  cent  interest;  but  if  a  bond 
be  given,  that  the  same  be  paid  to  the  clerk,  and  by  him  loaned 
to  the  bank  on  the  same  terms.  Basket  failed  to  give  the  bond 
required  for  a  supersedas,  but  afterwards  prayed  another  ap- 
peal, w^hieh  he  perfected  by  giving  bond  for  costs  alone.  To  this 
appeal.  Basket  and  the  appellee  are  the  parties  respectively,  the 
co-defendants  not  having  appealed,  or  been  cited  after  severance. 
And,  on  the  ground  that  they  are  necessary  parties,  the  appellee 
has  moved  to  dismiss  the  appeal. 

It  is  apparent,  however,  that  the  sole  controversy  is  between  the 
present  parties  to  the  appeal.  By  the  delivery  of  the  certificate 
of  deposit  to  the  clerk,  the  attorneys  of  Basket  are  exonerated  from 
all  responsibility;  and  the  payment  of  the  money  by  the  bank, 
to  the  appellee,  equally  relieves  it  and  its  officers.  *  *  *  The 
motion  to  dismiss  the  appeal  is,  accordinglly ,  overruled. 

The  fund,  in  respect  to  which  the  controversy  has  arisen,  was 
represented  by  a  certificate  of  deposit,  of  which  the  following  is 
a  copy : 

* '  E vansville  National  Bank, 

Evansville,  Ind.,  Sept.  8,  1875. 

"H.  M.  Chancy  has  deposited  in  this  bank  twenty-three  thousand 
five  hundred  and  fourteen  and  70-100  dollars,  payable  in  current 
funds,  to  the  order  of  himself,  on  surrender  of  this  certificate 
properly  endorsed,  with  interest  at  the  rate  of  6  per  cent  per  annum, 
if  left  for  six  months. 

$23,514.70.  Henry  Reis,  Cashier." 

Chaney,  being  in  possession  of  this  certificate  at  his  home  in 
the  county  of  Sumner,  State  of  Tennessee,  during  his  last  sickness 
and  in  apprehension  of  death,  wrote  on  the  back  thereof  the  fol- 
lowing indorsement: 

"Pay  to  Martin  Basket,  of  Henderson,  Ky. ;  no  one  else;  then 
not  till  my  death.  My  life  seems  to  be  uncertain.  I  may  live 
through  this  spell.     Then  I  will  attend  to  it  myself. 

H.  M.  Chaney." 

Chaney  then  delivered  the  certificate  to  Basket,  and  died,  without 
recovering  from  that  siekness,  in  January,  1876. 

It  is  claimed  on  behalf  of  the  appellant  that  this  constitutes  a 
valid  dmiatio  mortis  causa,  which  entitles  him  to  the  fund ;  and 
whether  it  be  so,  is  the  sole  f|uestion  for  our  determination. 


374  Cases  on  Personal  Property 

The  general  doctrine  of  the  common  law  as  to  gifts  of  this  char- 
acter is  fully  recognized  by  the  Supreme  Court  of  Tennessee  as 
part  of  the  law  of  that  state.  Richardson  v.  Adams,  10  Yerg.  273 ; 
Sims  V.  Walker,  8  Humph.  503 ;  Gass  v.  Simpson,  4  Cold.  288. 

In  the  case  last  mentioned,  that  court  had  occasion  to  consider 
the  nature  of  such  a  disposition  of  property  and  the  several  ele- 
ments that  enter  into  its  proper  definition. 

Among  other  things,  it  said : 

"A  question  seems  to  have  arisen,  at  an  early  day,  over  which 
there  was  much  contest,  as  to  the  real  nature  of  gifts  causa  mortis. 
Were  they  gifts  inter  vivos,  to  take  effect  before  the  death  of  the 
donor?  or  were  they  in  the  nature  of  a  legacy,  taking  effect  only 
at  the  death  of  the  donor?    At  the  termination  of  this  contest,  it 
seems  to  have  been  settled,  that  a  gift  causa  mortis  is  ambulatory 
and  incomplete  during  the  donor's  life  and  is,  therefore,  revocable 
by  him  and  subject  to  his  debts,  upon  a  deficiency  of  assets;  not 
because  the  gift  is  testamentary  or  in  the  nature  of  a  legacy,  but 
because  such  is  the  condition  annexed  to  it  and  because  it  would 
otherwise  be  fraudulent  as  to  creditors;  for  no  man  may  give  his 
property  who  is  unable  to  pay  his  debts ;  and  all  now  agree  that  it 
has  no  other  property  in  common  with  a  legacy.     The  property 
must  pass  at  the  time  and  not  be  intended  to  pass  at  the  giver's 
death ;  yet,  the  party  making  the  gift,  does  not  part  with  the  whole 
interest,  save  only  in  a  certain  event;  and,  until  the  event  occurs 
wdiich  is  to  devest  him,  the  title  remains  in  the  donor.     The  donee 
is  vested  with  an  inchoate  title,  and  the  intermediate  ownership 
is  in  him ;  but  his  title  is  def  easable  until  the  happening  of  the  event 
necessary  to  render  it  absolute.     It  differs  from  a  legacy  in  this, 
that  it  does  not  require  probate,  does  not  pass  to,  the  executor  or 
administrator,  but  is  taken  against,  not  from  him.    Upon  the  hap- 
pening of  the  event  upon  which  the  gift  is  dependent,  the  title 
of  the  donee  becomes,  by  relation,  complete  and  absolute  from  the 
time  of  the  delivery,  and  that  without  any  consent  or  other  act 
on  the  part  of  the  executor  or  administrator;  consequently,  the 
gift  is  i7iter  vivos."    In  another  part  of  the  opinion  (p.  297),  it  is 
said:     ''All  the  authorities  agree  that  delivery  is  essential  to  the 
validity  of  the  gift ;  and  that,  it  is  said,  is  a  wise  principle  of  our 
laws,  because  delivery  strengthens  the  evidence  of  the  gift ;  and  is 
certainly  a  very  powerful  fact  for  the  prevention  of  frauds  and 
perjury." 

In  the  first  of  these  extracts  there  is  an  inaccuracy  of  expression, 
which  seems  to  have  introduced  some  confusion,  if  not  an  apparent 


Transfer  of  Property  by  Act  of  the  Parties         375 

contradiction,  when,  after  having  stated  that  "The  property  must 
pass  at  the  time  and  not  be  intended  to  pass  at  the  giver's  death," 
it  is  added,  that  "until  the  event  occurs  which  is  to  devest  him, 
the  title  remains  in  the  donor."  But  a  view  of  the  entire  passage 
leaves  no  room  to  doubt  its  meaning;  that  a  donatio  mortis  causa 
must  be  completely  executed,  precisely  as  required  in  the  case  of 
gifts  inter  vivos,  subject  to  be  devested  by  the  happening  of  any 
of  the  conditions  subsequent;  that  is,  upon  actual  revocation  by 
the  donor,  or  by  the  donor's  surviving  the  apprehended  peril,  or 
outliving  the  donee,  or  by  the  occurrence  of  a  deficiency  of  assets 
necessary  to  pay  the  debts  of  the  deceased  donor.  These  conditions 
are  the  only  qualifications  that  distinguish  gifts  mortis  causa  and 
inter  vivos.  On  the  other  hand,  if  the  gift  does  not  take  effect 
as  an  executed  and  complete  transfer  to  the  donee  of  possession 
and  title,  either  legal  or  equitable,  during  the  life  of  the  donor,  it 
is  a  testamentary^  disposition,  good  only  if  made  and  proved  as  a 
will. 

This  statement  of  the  law,  we  think,  to  be  correctly  deduced  from 
the  judgments  of  the  highest  courts  in  England  and  in  this  coun- 
try; although  as  might  well  have  been  expected,  since  the  early 
introduction  of  the  doctrine  into  the  common  law  from  the  Roman 
civil  law,  it  has  developed,  by  new  and  successive  applications,  not 
without  fluctuating  and  inconsistent  decisions. 

"As  to  the  character  of  the  thing  given,"  says  Chief  Justice 
Shaw,  in  Chase  v.  Redding,  13  Gray  418-420,  "The  law  has  under- 
gone some  changes.  Originally  it  was  limited,  with  some  exactness, 
to  chattels,  to  some  object  of  value  deliverable  by  the  hand ;  then 
extended  to  securities  transferable  solely  by  delivery,  as  bank 
notes,  lottery  tickets,  notes  payable  to  bearer  or  to  order,  and 
indorsed  in  blank ;  subsequently  it  has  been  extended  to  bonds  and 
other  choses  in  action,  in  writing  or  represented  by  a  certificate, 
when  the  entire  equitable  interest  is  assigned;  and  in  the  very 
latest  cases  on  the  subject  in  this  Commonwealth,  it  has  been  held 
that  a  note  not  negotiable,  or  if  negotiable,  not  actually  indorsed, 
but  delivered,  passes,  with  a  right  to  use  the  name  of  the  adminis- 
trator of  the  promisee,  to  collect  it  for  the  donee's  own  use,"  citing 
Sessions  v.  Moseley,  4  Cush.  87;  Bates  v.  Kempton,  7  Gray  382; 
Parish  v.  Stone,  14  Pick.  203. 

In  the  case  last  mentioned,  Parish  v.  Stone,  the  same  distinguished 
Judge,  speaking  of  the  cases  which  had  extended  the  doctrine  of 
gifts  mortis  causa  to  include  choses  in  action,  delivered  so  as  to 
operate  only  as  a  transfer  by  equitable  assignment  or  a  declaration 


376  Cases  on  Personal  Property 

of  trust,  says  further,  that  ' '  These  eases  all  go  on  the  assumption 
that  a  bond,  note  or  other  security  is  a  valid  subsisting  obligation 
for  the  payment  of  a  sum  of  money,  and  the  gift  is,  in  effect,  a 
gift  of  the  money  by  a  gift  and  delivery  of  the  instrument  that 
shows  its  existence  and  affords  the  means  of  reducing  it  to  posses- 
sion." He  had,  in  a  previous  part  of  the  same  opinion,  stated 
that  "The  necessity  of  an  actual  delivery  has  been  uniformly 
insisted  upon  in  the  application  of  the  rules  of  the  English  law  to 
this  species  of  gift."    P.  204. 

In  Camp 's  Appeal,  36  Conn.  88,  the  Supreme  Court  of  Errors  of 
Connecticut  held  that  a  delivery  to  a  donee  of  a  savings  bank  book, 
containing  entries  of  deposits  to  the  credit  of  the  donor,  with 
the  intention  to  give  to  the  donee  the  deposits  represented  by  the 
book,  is  a  good  delivery  to  constitute  a  complete  gift  of  such  depos- 
its, on  the  general  ground  that  a  delivery  of  a  chose  in  action  that 
would  be  sufficient  to  vest  an  equitable  title  in  a  purchaser  is  a  suffi- 
cient delivery  to  constitute  a  valid  gift  of  such  chose  in  action, 
without  a  transfer  of  the  legal  title.  That  was  the  case  of  a  gift 
inter  vivos.  But  the  court  say,  referring  to  the  case  of  Brown 
V.  Brown,  18  Conn.  410,  as  having  virtually  determined  the  point: 
*'It  is  true  that  was  a  donation  causa  mortis,  but  the  principle 
involved  is  the  same  in  both  cases,  as  there  is  no  difference  in  respect 
to  the  requisites  of  a  delivery  between  the  two  classes  of  gifts." 
And  so  Justice  "Wilde,  delivering  the  opinion  of  the  court  in  Grover 
V.  Grover,  24  Pick.  261-264,  expressly  declared  that  "A  gift  of  a 
chose  in  action,  provided  no  claims  of  creditors  interfere  to  affect 
its  validity,  ought  to  stand  on  the  same  footing  as  a  sale:"  that 
the  title  passed  and  the  gift  became  perfected,  by  delivery  and 
acceptance;  that  there  was  therefore,  "No  good  reason  why  prop- 
erty thus  acquired  should  not  be  protected  as  fully  and  effectually 
as  property  acquired  by  purchase;"  and  showed,  by  a  reference  to 
the  cases,  that  there  was  no  difference  in  this  respect  between  gifts 
inter  vivos  and  mortis  cm(sa. 

In  respect  to  the  opinion  in  this  case,  it  is  to  be  observed,  that 
it  cites  with  approval  the  case  of  Wright  v.  Wright,  1  Cow.  598, 
in  which  it  was  decided  that  the  promissory  note,  of  which  the 
donor  himself  was  maker,  might  be  the  subject  of  a  valid  gift 
tnortis  caaisa,  though  the  concurrence  was  not  upon  that  point. 
That  case,  however,  has  never  been  followed.  It  was  expressly 
disapproved  and  disregarded  by  the  Supreme  Court  of  Errors  of 
Connecticut  in  Raymond  v.  Sellick,  10  Conn.  480,  Judge  Waite 
delivering  the  opinion  of  the  court ;  had  been  expressly  questioned 


Transfer  of  Property  by  Act  of  the  Parties  377 

and  disapproved  in  Parish  v.  Stone,  14  Pick.  198-206,  by  Chief 
Justice  Shaw,  and  was  distinctly  overruled  by  the  Court  of  Appeals 
of  New  York,  in  Harris  v.  Clark,  3  N.  Y.  93.  In  that  case  it  was 
said:  ''Gifts,  however,  are  valid  without  consideration  or  actual 
value  paid  in  return.  But  there  must  be  delivery  of  possession. 
The  contract  must  have  been  executed.  The  thing  given  must  be 
put  into  the  hands  of  the  donee,  or  placed  within  his  power  by 
delivery  of  the  means  of  obtaining  it.  The  gift  of  the  maker's 
own  note  is  the  delivery  of  a  promise  only,  and  not  of  the  thing 
promised,  and  the  gift  therefore  fails.  Without  delivery,  the 
transaction  is  not  valid  as  an  executed  gift ;  and  without  consider- 
ation, it  is  not  valid  as  a  contract  to  be  executed.  The  decision  in 
Wright  V.  Wright  was  founded  on  a  supposed  distinction  between 
a  gift  inter  vivos  and  a  donatio  mortis  causa.  But  there  appears 
to  be  no  such  distinction.  A  delivery  of  possession  is  indispensable 
in  either  case." 

The  case  from  which  this  extract  is  taken  was  very  thoroughly 
argued  by  Mr.  John  C.  Spencer  for  the  plaintiff,  and  Mr.  Charles 
0 'Conor  for  the  defendant,  and  the  judgment  of  the  court  states 
and  reviews  the  doctrine  on  the  subject  with  much  learning  and 
ability.  It  was  held  that  a  written  order  upon  a  third  person, 
for  the  payment  of  money,  made  by  the  donor,  was  not  the  subject 
of  a  valid  gift,  either  inter  vivos  or  moi-tis  causa;  and  the  rule 
applicable  in  such  eases,  as  conceded  by  Mr.  0 'Conor,  was  stated 
by  him  as  follows: 

' '  Delivery  to  the  donee  of  such  an  instrument  as  will  enable  him, 
by  force  of  the  instrument  itself,  to  reduce  the  fund  into  possession, 
will  suffice,  is  the  plaintiff's  doctrine.  This  might  safely  be  con- 
ceded. It  might  even  be  conceded  that  a  delivery  out  of  the 
donor's  control  of  an  instrument,  without  which  lie  could  not 
recover  the  fund  from  his  debtor  or  agent,  would  also  suffice." 

The  same  view,  in  substance,  was  taken  in  deciding  Hewitt  v. 
Kaye,  L.  R.,  6  Eq.  198,  which  was  the  case  of  a  check  on  a  banker, 
given  by  the  drawer  mortis  causa,  who  died  before  it  was  possible 
to  present  it,  and  which  was  held  not  to  be  valid.  Lord  Romilly, 
M.  R.,  said:  "When  a  man  on  his  deathbed  gives  to  another  an 
instrument,  such  as  a  bond,  or  promissory  note,  or  an  I  0  U,  he  gives 
a  chose  in  action,  and  the  delivery  of  the  instrument  confers  upon 
the  donee  all  the  rights  to  the  clwse  in  action  arising  out  of  the 
instrument.  That  is  the  principle  upon  which  Amis  v.  Witt,  33 
Beav.  619,  was  decided,  where  the  donor  gave  the  donee  a  document 
by  which  the  bankers  acknowledged  that  they  held  so  much  money 


378  Cases  on  Personal  Property 

belonging  to  the  donor  at  his  disposal,  and  it  was  held  that  the 
delivery  of  that  document  conferred  upon  the  donee  the  right  to 
receive  the  money.  But  a  cheque  is  nothing  more  than  an  order 
to  obtain  a  certain  sum  of  money,  and  it  makes  no  difference 
whether  the  money  is  at  a  banker's  or  anywhere  else.  It  is  an 
order  to  deliver  the  money,  and  if  the  order  is  not  acted  upon 
in  the  lifetime  of  the  person  who  gives  it,  it  is  worth  nothing." 

Accordingly  the  Vice-Chancellor,  in  In  re  Beak's  Estate,  L.  E., 
13  Eq.  489,  refused  to  sustain  as  valid  the  gift  of  a  check  upon  a 
banker,  even  although  its  delivery  was  accompanied  by  that  of  the 
donor's  pass-book. 

The  same  rule,  as  to  an  unpaid  and  unaccepted  check,  was  fol- 
lowed in  Nat.  Bk.  v.  Williams,  13  Mich.  282.  The  principle  is  that 
a  check  upon  a  bank  account  is  not  of  itself  an  equitable  assignment 
of  the  fund,  Bank  v.  Millard,  10  Wall.  152  (77  U.  S,  XIX  897), 
but  if  the  banker  accepts  the  check,  or  otherwise  subjects  himself 
to  liability  as  a  trustee,  prior  to  the  death  of  the  donor,  the  gift  is 
complete  and  valid,  Bromley  v.  Brunton,  L.  R.,  6  Eq.  275. 

Contrary  decisions  have  been  made  in  respect  to  donations  mortis 
causa  of  savings  bank  books,  some  courts  holding  that  the  book 
itself  is  a  document  of  title,  the  delivery  of  which,  with  that  intent, 
is  an  equitable  assignment  of  the  fund.  Pierce  v.  Bank,  129  Mass. 
425 ;  Hill  V.  Stevenson,  63  Me.  364 ;  Tillinghast  v.  Wheaton,  8  R.  I. 
536.  The  contrary  was  held  in  Ashbrook  v.  Ryon,  2  Bush  228, 
and  in  McGonnell  v.  Murray,  Ir.,  Rep.,  3  Eq.  460. 

That  a  delivery  of  a  certificate  of  deposit,  such  as  that  described 
in  the  record  in  this  case,  might  constitute  a  valid  do7iaUo  'mortis 
causa,  does  not  admit  of  doubt.  It  was  so  decided  in  Amis  v.  Witt 
(supra);  in  Moore  v.  Moore,  L.  R.,  18  Eq.  474;  Hewitt  v.  Kaye, 
L.  R.,  6  Eq.  198 ;  Westerlo  v.  DeWitt,  36  N.  Y.  340.  A  certificate 
of  deposit  is  a  subsisting  chose  in  action  and  represents  the  fund 
it  describes,  as  in  cases  of  notes,  bonds,  and  other  securities,  so 
that  a  delivery  of  it,  as  a  gift,  constitutes  an  equitable  assignment 
of  the  money  for  which  it  calls. 

The  point,  which  is  made  clear  by  this  review  of  the  decisions 
on  the  subject,  as  to  the  nature  and  effect  of  a  delivery  of  a  chose 
in  action,  is,  as  we  think,  that  the  instrument  or  document  must  be 
the  evidence  of  a  subsisting  obligation  and  be  delivered  to  the  donee, 
so  as  to  vest  him  with  an  equitable  title  to  the  fund  it  represents, 
and  to  devest  the  donor  of  all  present  control  and  dominion  over 
it,  absolutely  and  irrevocably,  in  case  of  a  gift  inter  vivos,  but  upon 
the  recognized  conditions  subsequent,  in  case  of  a  gift  mortis  causa; 


Transfer  of  Property  by  Act  of  the  Parties  379 

and  that  a  delivery  which  does  not  confer  upon  the  donee  the 
present  right  to  reduce  the  fund  into  possesion  by  enforcing  the 
obligation,  according  to  its  terms,  will  not  suffice.  A  delivery, 
in  terms,  which  confers  upon  the  donee  power  to  control  tlie  fund 
only  after  the  death  of  the  donor,  when  by  the  instrument  itself 
it  is  presently  payable,  is  testamentary  in  character,  and  not  good 
as  a  gift.  Further  illustrations  and  applications  of  the  principle 
may  be  found  in  the  following  cases :  Powell  v.  Hellicar,  26  Beav. 
261 ;  Reddel  v.  Dobree,  10  Sim.  244 ;  Farquharson  v.  Cave,  2  Colly. 
Ch.  356;  Hatch  v.  Atkinson,  56  Me.  324;  Bunn  v.  Markham,  7 
Taunt.  224;  Coleman  v.  Parker,  114  Mass.  30;  Wing  v.  Merchant, 
57  Me.  383;  Mc Willie  v.  Van  Vacter,  35  Miss.,  428;  Egerton  v. 
Egerton,  17  N.  J.  Eq.  420 ;  Michener  v.  Dale,  23  Pa.  59. 

The  application  of  these  principles  to  the  circumstances  of  the 
present  case  require  the  conclusion  that  the  appellant  acquired  no 
title  to  the  fund  in  controversy,  by  the  indorsement  and  delivery 
of  the  certificate  of  deposit.  The  certificate  was  payable  on  demand ; 
and  it  is  unquestionable  that  a  delivery  of  it  to  the  donee,  with 
an  indorsement  in  blank,  or  a  special  indorsement  to  the  donee, 
or  without  indorsement,  would  have  transferred  the  whole  title 
and  interest  of  the  donor  in  the  fund  represented  by  it,  and  might 
have  been  valid  as  a  donatio  mortis  causa.    *    *    * 

But  the  actual  transaction  was  entirely  different.  The  indorse- 
ment, which  accompanied  the  delivery,  qualified  it,  and  limited  and 
restrained  the  authority  of  the  donee  in  the  collection  of  the 
money,  so  as  to  forbid  its  payment  until  the  donor's  death.  The 
property  in  the  fund  did  not  presently  pass,  but  remained  in  the 
donor,  and  the  donee  was  excluded  from  its  possession  and  control 
during  the  life  of  the  donor.  That  qualification  of  the  right,  which 
would  have  belonged  to  him  if  he  had  become  the  present  owner  of 
the  fund,  establishes  that  there  was  no  delivery  of  possession, 
according  to  the  terms  of  the  instrument,  and  that  as  the  gift  was 
to  take  effect  only  upon  the  death  of  the  donor,  it  was  not  a  present 
executed  gift  mortis  causa,  but  a  testamentary  disposition.  *  *  * 
It  was,  in  substance,  not  an  assignment  of  the  fund  on  deposit,  but 
a  check  upon  the  bank  against  a  deposit,  which,  as  is  shown  by 
all  the  authorities  and  upon  the  nature  of  the  case,  cannot  be  valid 
as  a  donatio  mortis  causa,  even  where  it  is  payable  in  proesenti, 
unless  paid  or  accepted  while  the  donor  is  alive ;  how  much  less  so, 
when,  as  in  the  present  case,  it  is  made  payable  only  upon  his 
death. 


380  Cases  on  Personal  Property 

TJiis  view  of  tlie  law  was  the  one  taken  ly  the  Circuit  Court  as 
the  basis  of  its  decree,  in  which  we  accordingly  find  no  error.  It  is, 
accordingly,  affirmed.^^ 


PAGE  V.  LEWIS  et  al. 

89  Va.  1, 15  8.  E.  389,  37  Am.  St.  848, 18  L.  B.  A.  170.    1892. 

The  facts  are  stated  in  the  opinion. 

Fauntleroy,  J. — The  petition  of  Legh  R-.  Page,  administrator  of 
William  A.  Thomas,  deceased,  represents  that,  on  the  4th  of  Janu- 
ary, 1889,  the  said  William  A.  Thomas  died  intestate,  leaving  an 
estate  valued  at  some  $225,000,  of  which  some  $20,000  was  realty, 
$18,000  on  deposit  in  the  Planters'  National  Bank  of  Richmond, 
and  the  balance,  represented  by  bonds,  stocks,  choses  in  action, 
and  gold  coin,  deposited  in  a  rented  box  in  the  vaults  of  the 
said  bank.  That  on  the  14th  day  of  January,  1889,  the  county 
court  of  Henrico  county,  on  the  motion  of  the  heirs-at-law  of  the 
said  decedent,  appointed  William  R.  Quarles  and  Mann  S.  Quarles 
curators  of  the  said  estate,  who  immediately  qualified  as  such,  by 
giving  bond  in  the  penalty  of  $300,000,  and  entered  upon  the  dis- 
charge of  their  duties.  That  on  the  29th  day  of  January,  1889, 
said  Bettie  Lewis,  along  wdth  her  husband,  filed  her  bill  in  the 
chancery  court  of  the  city  of  Richmond,  against  the  aforesaid 
curators,  in  which  she  asserted  that  said  William  A.  Thomas, 
deceased,  during  his  last  illness,  by  gift  causa  mortis,  gave  her  the 
keys  to  the  tin  box  in  the  vault  of  the  Planters'  National  Bank, 
above  described,  and  with  them  all  the  property  contained  therein. 
That  he  gave  her  the  pass-book  .showing  the  status  of  his  account 
with  said  Planters'  Bank  for  money  placed  on  deposit  therein,  and 
with  it  gave  to  her  the  balance  on  deposit  to  his  credit  in  said  bank, 
amounting,  as  aforesaid,  to  some  $18,000;  and  that  he  also  gave 
to  her  several  negotiable  notes,  aggregating  less  than  $1,000,  which 
he  had  with  him  at  his  residence  at  the  time  of  his  last  illness. 
That,  to  this  bill,  the  curators  filed  their  joint  demurrer  and 
answer,  denying  the  claim  asserted  by  said  Bettie  Lewis; 
denying  that  said  Thomas  had  attempted  during  his  last 
illness  to  make  a  gift  to  the  plaintiff  of  said  property ;  and  insist- 

20  See  Childs'  Personal  Property,  §§224,  228,  229. 


Transfer  op  Property  by  Act  of  the  Parties  381 

ing  that  actual  possession  of  the  several  subjects  of  this  pretended 
donation  had  never  come  to  or  remained  with  the  plaintiff ;  and  that 
no  possession,  either  actual  or  constructive,  by  her,  at  the  joint  resi- 
dence of  the  donor  and  donee,  could  render  valid  the  alleged  gift, 
the  same  not  being  evidenced  by  deed  or  will.  That  on  the  19th 
day  of  February,  1889,  petitioner,  Legh  R.  Page,  was  appointed 
administrator  of  the  estate  of  said  William  A.  Thomas,  deceased, 
by  the  county  court  of  Henrico  county,  and,  as  such,  he  filed  his 
answer  to  the  bill  of  said  Bettie  Lewis.  *  *  *  The  cause  was 
argued  at  great  length,  and  on  the  8th  day  of  January,  1891,  a 
decree  was  pronounced  sustaining  the  claim  of  the  said  Bettie  Lewis 
(as  preferred  in  her  bill)  to  all  the  personal  estate  of  the  said  AVil- 
liam  A.  Thomas,  deceased,  except  the  sum  of  $18,000,  money  on 
deposit  in  the  Planters'  National  Bank,  which  was  awarded  to 
petitioner,  as  administrator  aforesaid.  From  this  decree  the  case 
is  here  on  appeal. 

The  question  raised  in  the  controversy,  and  to  be  decided  by  this 
court,  is,  AYhat  constitutes  a  valid  gift  causa  'mortis f  and  whether 
the  evidence  adduced  by  the  complainant  comes  up  to  the  law's 
requirements  to  establish  such  a  gift  by  the  decedent,  William  A. 
Thomas,  to  the  complainant  Bettie  Thomas  Lewis,  by  and  through 
the  facts  and  circumstances  detailed  in  the  bill  and  attested  by 
the  proofs.     *     *     * 

Bettie  Thomas  Lewis,  who  before  her  marriage,  was  Bettie 
Thomas,  is  the  only  living  child  of  the  late  William  A.  Thomas,  a 
wealthy  retired  merchant,  who,  at  the  age  of  70  years,  and  enfeebled 
by  long  sickness,  departed  this  life  intestate  on  the  4th  day  of 
January,  1889,  at  his  residence,  in  or  near  the  city  of  Richmond, 
possessed  of  a  large  estate  of  both  real  and  personal  property,  but 
principally  personality.  He  never  married,  but  cohabited  with 
a  woman  of  half  white  blood,  formerly  his  slave  in  the  county  of 
Pittsylvania,  Va.,  by  whom  he  was  the  father  of  two  daughters, 
Bettie,  and  an  older  sister,  Fannie,  who  married  and  died,  soon 
after  the  late  civil  war,  without  issue.  Bettie,  35  years  of  age  when 
her  father  died,  and  Fannie  were  always  recognized  and  acknowl- 
edged by  William  A.  Thomas  as  his  children.  *  *  *  Soon  after 
the  termination  of  the  late  war,  he  removed  to  Richmond  to  engage 
in  business,  and  he  purcliased  a  small  farm  just  outside  the  city 
limits  for  a  home  for  himself  and  Bettie;  and  there  they  lived 
together  for  more  than  twenty  years ;  she  presiding  at  his  table  and 
over  his  household  afTairs,  and  administering  to  him  in  sickness 
and  in  health,  nursing  and  caring  for  him  witii  the  constant  assidui- 


382  Cases  on  Personal  Property 

ties  of  a  devoted  and  dutiful  daughter,  and  he  providing  for  her 
comfort  and  pleasure,  in  every  conceivable  form  that  lavish  parental 
love  and  large  means  could  suggest.  He  built  the  house  in  which 
they  lived  for  her ;  and,  according  to  her  directions,  he  planned  and 
furnished  it.  *  *  *  He  provided  for  her  an  intelligent,  agree- 
able female  living-companion  in  his  house  until  her  marriage  to 
John  H.  Lewis ;  and,  for  many  years  previous  and  up  to  his  death, 
Fannie  Coles,  an  educated,  intellectual  woman,  *  *  *  was  her- 
household  companion,  friend,  and  roommate.     *     *     * 

There  is  in  the  record  very  much  more  testimony,  equally  strong, 
explicit,  unimpeached,  and  uncontradicted,  attesting  the  life-long, 
avowed  and  unwavering  solicitude  and  purpose  of  this  isolated  old 
man  to  nourish  tenderly  while  he  lived  and  to  provide  for  amply 
at  his  death,  his  devoted  and  faithful  daughter  Bettie,  the  only  light 
of  his  long  life,  and  the  only  love  which  quickened  the  emotions 
of  his  introverted  and  self -centered  soul.     *     *     * 

The  factum  of  the  gift  depends  mainly  upon  the  testimony  of 
Fannie  Coles,  detailing  the  circumstances,  actions,  and  accompany- 
ing statements  of  Mr.  Thomas  during  the  period  of  impending  dis- 
solution; and,  if  that  testimony  be  credible,  consistent,  uncontra- 
dicted and  corroborated  by  concomitant  circumstances,  it  estab- 
lishes, by  legal  and  sufficient  evidence,  the  gift,  as  a  valid  donation 
mortis  causa,  by  AYilliam  A.  Thomas  to  the  claimant,  his  daugh- 
ter Bettie  Lewis.  *  *  *  On  Thursday,  the  3d  day  of  January, 
1889,  William  A.  Thomas  was  taken  seriously  ill,  and  he  died  in 
the  early  part  of  the  night  of  Friday, — the  next  day.  It  was  dur- 
ing that  illness  that  he  made  to  his  daughter  Bettie  the  gift  which 
is  the  subject  of  controversy  in  this  case,  and  to  which  the  chancery 
court  of  the  city  of  Eichmond,  upon  the  evidence  adduced,  has 
solemnly  adjudged  she  is  entitled  bj^  law. 

The  witness  Fannie  Coles  says:  "Mr.  Thomas  called  Bettie  to 
his  bedside,  and  said,  'Bettie,  I  am  a  very  sick  man,  I  do  not  know 
what  may  happen;'  and  he  said,  'Bettie,  look  into  my  pants'  pocket, 
and  bring  me  my  keys,  my  penknives,  my  two  purses,  and  look  in 
the  inside  of  my  vest  pocket,  and  bring  me  a  package  of  papers  tied 
with  a  red  string.'  She  brought  them  to  his  bed  to  him,  and  he 
said,  'Bettie,  I  am  going  to  give  you  ther-  things  as  yours.'  He 
gave  her  the  keys  to  his  top  bureau  drawer,  and  told  her  that  in  that 
drawer  she  would  find  two  notes  in  a  white  envelope;  to  get  these 
notes  out  of  the  drawer, — that  they  were  hers.  Then  he  opened  a 
small  black  purse  and  took  out  a  small  package  of  white  tissue 
paper.    Out  of  this  paper  he  took  some  keys,  and  he  said,  '  Bettie, 


Transfer  op  Property  by  Act  of  the  Parties  383 

here  are  the  keys  to  my  safe  at  Drewry  &  Go's,  and  to  the  box  I 
have  in  the  vault  of  the  bank.'  He  says,  'At  Drewry  &  Go's,  in 
the  safe,  you  Tvill  not  find  anything  of  any  great  value,  but  whatever 
you  find  in  that  safe  you  can  have.  Now,  Bettie,  these  keys  that 
I  now  give  you  that  belong  to  the  box  in  the  vault  at  the  bank  is 
where  all  my  valuables  are.  Whatever  you  find  in  that  box,  you 
can  have  as  yours ;  and,  Bettie,  whatever  you  do,  don ' t  let  any  one 
get  these  keys  away  from  you  on  any  pretense.  Swing  on  to  them, 
as  you  would  your  life. '  Then  he  took  up  his  pocketbook,  and  gave 
it  to  her,  and  told  her  it  had  no  great  amount  in  the  pocketbook, 
but  it  was  hers.  Then  he  took  up  the  package  of  papers  that  was 
tied  with  a  red  string,  and  he  said,  'Bettie,  in  this  package  you 
will  find  my  bank  book,  showing  you  how  much  I  have  in  bank. 
Whatever  it  calls  for,  you  can  have  as  yours,  and  in  this  package 
also  you  will  find  some  notes.  They  will  be  money  for  you;  you 
can  have  them  also.  Bettie,  I  wish  you  to  take  these  papers,  my 
purses,  and  my  knives, — I  give  you  these  knives  also, — and  put 
them  in  your  trunk.  I  don't  want  you  to  put  them  in  my  bureau, 
but  put  them  between  your  clothes,  for  safe-keeping;  for,  Bettie, 
you  will  have  to  take  care  of  these  things  now.  I  have  been  taking 
care  of  them  all  these  years  for  you.'  "     *     *     * 

After  the  conversation  last  detailed  by  the  witness,  Thomas  be- 
came much  worse  late  on  Friday  evening,  and  Dr.  McGuire  was 
again  sent  for.  He  arrived  at  eight  o'clock  that  night,  and  left  a 
little  after  eight.  Thomas  grew  rapidly  worse  after  the  doctor  left, 
and  the  witness  Fannie  Goles  testifies,  "that  Thomas  called  Bettie 
and  said  to  her,  'Oh,  Bettie,  I  am  a  mighty  sick  man, — sicker  than 
3'ou  have  any  idea  about;'  and  he  says,  'Bettie,  where  are  those 
things  I  have  given  you?'  She  says,  'In  my  trunk,  safe.'  And  he 
says,  'Bettie,  where  are  your  trunk  keys?'  And  she  said  to  him, 
'I  have  got  them  in  my  bosom,  here.'  And  he  said,  'That  is  right, 
Bettie;  keep  your  keys  on  your  person.'  And  he  says,  'Bettie, 
make  sure  of  it  again ;  I  have  given  you  everything  I  possess  in  this 
world.'  He  says,  'Fannie,  you  hear  me  give  them  to  Bettie  again, 
don't  you?'  I  said,  'Yes,  sir.'  He  says,  'Now,  Fannie,  remember.' 
And  he  said,  '  Bettie,  I  am  sicker  than  ever  I  was  in  my  life. '  Ajid 
Bettie  says,  'I  shall  send  for  the  doctor.'  He  says,  'Oh,  Bettie,  I 
don't  think  he  can  do  much  good.'  Then  he  turned  to  her,  and  he 
says,  'Oh,  Bettie,  remember,  now,  I  have  given  you  everything;' 
and  he  turned  over  and  complained  of  a  severe  pain  in  his  side, 
and  in  a  few  minutes  he  was  dead. "     *     *     * 

The  testimony  and  the  circumstances  relied  on  by  the  appellant 


384  Cases  on  Personal  Property 

to  show  that  no  such  gift  was  made  by  Mr.  Thomas  as  sworn  to  by 
Fannie  Coles,  and  attested  by  corroborating  facts,  do  not,  we  think, 
furnish  a  sufficient  basis  for  even  reasonable  conjecture ;  much  less 
to  assure  the  guarded  discretion  of  a  court  of  justice.  Tne  circum- 
stance that  there  is  but  one  direct  witness  to  the  gift,  competent  to 
testify  (the  appellant  declining  to  allow  the  donee  as  a  witness  when 
offered),  does  not  affect  the  validity  of  the  gift.  One  witness,  if 
credible,  is  sufficient.  The  law  does  not  require  more  than  one; 
and  especially,  as  in  this  case,  when  that  one  is  not  only  unim- 
peached,  but  corroborated.  Nor  does  the  magnitude  of  the  gift 
affect  its  validity.  It  may  extend  to  the  whole  of  the  donor's  per- 
sonal estate.  The  law  fixes  no  limit.  In  the  case  of  Duffield  v. 
Elwes,  1  Bligh,  N.  S.  497,  the  gift  causa  mortis  was  of  the  value  of 
$165,000.  In  Hatch  v.  Atkinson,  56  Me.  327,  96  Am.  Dec.  464,  the 
court  says :  ' '  The  common  law  does  not  require  the  gift  to  be  exe- 
cuted in  the  presence  of  any  stated  number  of  witnesses ;  nor  does 
it  limit  the  amount  of  the  property  that  may  thus  be  disposed  of." 
AVard  v.  Turner,  1  White  &  T.  Lead.  Cas.  Eq.  pt.  2,  p.  1251,  note ; 
2  Schouler,  Pers.  Prop.  132-136. 

The  factum  of  the  gift  in  this  ease  being  clearly  and  conclusively 
proved,  as  we  think  it  indisputably  has  been,  it  only  remains  to 
state  the  law,  and  apply  it  to  the  facts  proved.  They  show  all  the 
essential  attributes  or  constituent  elements  of  a  donatio  mortis 
causa,  as  defined  by  the  law  and  established  by  the  course  of  adju- 
dication. The  gift  was  made  in  periciilo  mortis,  under  the  appre- 
hension of  death  as  imminent;  and  it  was  of  personal  property, 
such  as,  under  the  law,  may  be  the  subject  of  a  gift  mortis  causa. 
Possession  or  delivery  was  made  at  the  time  of  the  gift;  and  the 
donor  died  of  that  illness  in  a  few  hours  after  the  making  of  the 
gift.  Thus  the  gift,  inchoate,  conditional,  and  defeasible  w'hen  made, 
became  absolute  at  the  donor's  death.  Delivery  is  essential.  It  may 
be  either  actual,  by  manual  tradition  of  the  subject  of  the  gift, 
or  constructive,  by  delivery  of  the  means  of  obtaining  possession. 
Constructive  delivery  is  always  sufficient  when  actual,  manual  deliv- 
ery is  either  impracticable  or  inconvenient.  The  contents  of  a  ware- 
house, trunk,  box,  or  other  depository  may  be  sufficiently  delivered 
by  delivery  of  the  key  of  the  receptacle.     *     *     * 

*  *  *  The  delivery  of  the  keys  to  Bettie  Lewis,  with  words  of 
gift,  by  her  father  upon  his  deathbed,  invested  her  with  the  same 
means  of  obtaining  possession  that  Thomas  had,  and  made  her  the 
owner,  with  title  defeasible  only  by  recovery  or  revocation  of  the 
donor,  or  by  a  deficiency  of  assets  to  pay  creditors.     *     *     *     it 


Transfer  of  Property  by  Act  of  the  Parties  3S5 

is  contended  that  the  gift  was  testamentary,  because  of  the  words 
in  the  affidavits  of  Bettie  Lewis 'and  Fannie  Coles, — "were  hers 
in  case  of  his  death;"  "to  be  hers  in  case  of  his  death."  #  «.  # 
The  cases  in  which  gifts  made  in  similar  and  identical  language 
by  dying  donors  have  been  held  to  be  valid  donations  mortis  causa 
are  numerous;  the  principle  being  that  the  expression,  "In  case 
of  my  death  it  is  yours, ' '  or  like  words,  do  not  of  themselves  make  a 
testamentary  disposition,  but  merely  express  the  condition  which 
the  law  annexes  to  every  donation  'inortis  causa.    *    *    * 

*  *  *  In  the  case  of  Basket  v.  Hassell,  107  U.  S.  602,  27  L.  Ed. 
500,  the  decision  turned  alone  on  the  construction  and  legal  effect 
of  the  indorsement  upon  the  certificate  by  the  donor:  "Pay  to 
Martin  Basket;  *  *  *  no  one  else;  then  not  until  my  death." 
This  was  held  to  be  a  testamentary  disposition ;  but  in  the  opinion 
of  the  court,  Mr.  Justice  JMatthews  sa3'^s:  "The  certificate  was 
payable  on  demand ;  and  it  is  unquestionable  that  a  delivery 
of  it  to  the  donee  with  an  indorsement  in  blank,  or  a  special 
indorsement  to  the  donee,  or  without  indorsement,  would  have 
transferred  the  whole  title  and  interest  of  the  donor  in  the  fund 
represented  by  it,  and  might  have  been  valid  as  a  do7iatio  mortis 
causa." 

It  is  contended  that  the  gift  by  Thomas,  in  this  case,  was  invalid 
because  it  comprised  the  bulk  of  his  estate.  The  jus  disp&nendi 
is  the  essential  value  and  element  of  property,  and  the  exercise  of 
that  right  is  commended  in  the  beatitude,  "It  is  more  blessed  to 
give  than  to  receive. ' '  By  the  law  of  Virginia  a  person  may  make 
a  dying  disposition  of  all  of  his  personal  property,  donatio  mortis 
causa;  and  there  is  no  limit  as  to  the  extent  of  the  gift, — whatever  of 
the  whole  or  of  the  part, — inter  vivos  or  donatio  mortis  causa.  Such 
limitation  can  only  be  by  express  legislation,  and  the  courts  are 
invested  with  no  such  function.  The  Roman  or  civil  law  of  dona- 
tiones  mortis  causa  did  recognize  the  limitation  or  restriction ;  but 
the  common  law  does  not  limit  the  amount,  absolute  or  comparative, 
of  the  personal  estate  which  may  thus  be  disposed  of.  Michener  v. 
Dale,  23  Pa.  59 ;  Seabright  v.  Seabright,  28  W.  Va.  481 ;  Hatch  v. 
Atkinson,  56  Me.  327,  96  Am.  Dec.  464 ;  White  &  T.  Lead.  Cas.  Eq. 
pt,  2,  p.  1251 ;  2  Schouler,  Pers.  Prop.  132-136. 

*  *  *  All  the  law-writers  use  the  simple  term  "gift,"  when 
used  without  qualification,  to  express  the  "ordinary  gift"  or  "sim- 
ple gift"  which  transfers  an  absolute  and  irrevocable  title  to  the 
donee,  as  contradistinguished  from  the  extraordinary  and  technical 
gift  mortis  causa,  which  is  made  under  the  apprehension  of  irapend- 

C.  P.  P.— 25 


386  Cases  on  Personal  Property 

ing  death,  and  transfers  only  a  conditional,  defeasible,  and  revocable 
interest.  The  peculiar  gift  mortis  causa  is  always  designated  by  its 
special,  technical  name;  and  it  is  never  understood  or  intended 
to  be  embraced  or  expressed  by  the  term  "gift,"  merely.  A  gift 
mortis  causa  is  a  very  different  thing  from  a  "gift,"  in  many 
essential  particulars.  *  *  *  The  disposition  of  personal  prop- 
erty by  donatio  mortis  causa  has  been  a  principle  and  practice  of 
the  common  law,  both  in  England  and  in  the  states  of  this  Union,  for 
centuries  past;  and  although,  since  the  day  of  Lord  Hardwicke, 
there  have  been  extrajudicial  utterances  in  deprecation  of  it,  it  is 
to-day  a  fixed  principle  of  enlightened  jurisprudence  in  all  civilized 
countries.  It  is  the  imperative  function  of  the  courts  to  interpret 
and  operate  the  law  as  it  is,  not  as  they  may  think  it  ought  to  be. 

In  the  able  and  elaborate  opinion  of  Judge  Leake,  filed  with  the 
record  in  this  case,  he  decided  (saying  "but  certainly  not  without 
doubts,"  "the  question  to  my  mind  is  a  very  doubtful  one")  that 
the  gift  by  Mr.  Thomas  of  his  bank  book,  showing  the  amount  of 
his  deposits  in  the  Planters'  National  Bank,  was  ineffectual  in  law 
as  a  donatio  mortis  causa  of  the  money  to  his  credit  in  the  said 
bank ;  and  he  decreed  accordingly.  In  this,  I  am  of  the  opinion  the 
decree  under  review  is  erroneous,  and  that  it  should  be,  under  the 
rule,  in  this  particular,  corrected  in  favor  of  the  appellees,  and  in 
all  other  respects  affirmed,  but  the  majority  of  the  court  think  the 
decree  is  wholly  right,  and  that  it  must  be  affirmed  as  it  is.  Every 
species  of  personal  property — in  its  largest  sense — capable  of  de- 
livery, actual  or  constructive,  may  be  the  subject  of  a  valid  gift 
mortis  causa,  including  monej^,  bank  notes,  stocks,  bonds,  notes, 
due  bills,  certificates  of  deposit,  and  any  other  written  evidence  of 
debt.  Lee  v.  Boak,  11  Gratt.  182,  and  cases  there  cited;  Elam  v. 
Keen,  4  Leigh,  333,  26  Am.  Dec.  322 ;  1  White  &  T.  Lead.  Cas.  Eq. 
1205 ;  Duffield  v.  Elwes,  1  Bligh,  N.  S.  497 ;  Grover  v.  Grover,  24 
Pick.  265,  35  Am.  Dec.  319.  In  the  case  of  Coleman  v.  Parker, 
114  Mass.  33,  it  is  said :  "This  term  'delivery'  is  not  to  be  taken  in 
such  a  narrow  sense  as  to  import  that  the  chattel  or  property  is  to 
go  literally  into  the  hands  of  the  recipient,  and  to  be  carried  away. 
There  are  many  articles  which  might  be  made  the  subjects  of  a 
donation  mortis  causa,  in  which  a  manual  delivery  of  that  kind 
might  be  inconvenient  or  impracticable.  We  have  no  doubt  that 
a  trunk,  with  its  .contents,  might  be  effectually  given  and  delivered 
in  such  a  case  by  a  delivery  of  the  key.  *  *  *  "  In  the  case  of 
Cooper  V.  Burr,  45  Barb.  9,  it  is  said :  *  *  The  situation,  relation,  and 
circumstances  of  the  parties,  and  of  the  subject  of  the  gift,  may  be 


Transfer  op  Property  by  Act  of  the  Parties  387 

taken  into  consideration  in  determining  the  intent  to  give,  and  the 
fact  as  to  delivery.  A  total  exclusion  of  the  power  or  means  of 
resuming  possession  by  the  donor  is  not  necessary."  In  Elara  v. 
Keen,  4  Leigh,  335,  26  Am.  Dec.  322,  Judge  Carr  said:  "There 
are  many  things  of  which  actual,  manual  tradition  cannot  be  made, 
either  from  their  nature  or  their  situation  at  the  time.  It  is  not 
the  intention  of  the  law  to  take  from  the  owner  the  power  of  giving 
these.  It  merely  requires  that  he  shall  do  what  under  the  circum- 
stances will  in  reason  be  considered  equivalent  to  an  actual  deliv- 
ery." In  Hatch  v.  Atkinson,  56  Me.  324,  96  Am.  Dec.  464,  the 
court  said  that  delivery  must  be  as  complete  ''as  the  nature  of  the 
property  would  admit  of."  See  Wing  v.  Merchant,  57  Me.  383; 
Dole  V.  Lincoln,  31  Me.  422 ;  Hillebrant  v.  Brewer,  6  Tex.  45,  55 
Am.  Dec.  757 ;  Noble  v.  Smith,  2  Johns.  52,  3  Am.  Dec.  399 ;  Jones 
V.  Brown,  34  N.  H.  445 ;  Marsh  v.  Fuller,  18  N.  H.  360.  In  Ste- 
phenson V.  King,  81  Ky.  425,  50  Am.  Rep.  173,  the  court,  referring 
to  the  case  of  Ashbrook  v.  Ryon,  as  to  the  bank  book,  says.  "What 
evidence  the  pass-book  contains  of  the  deposit  in  that  case  does  not 
appear.  If  an  ordinary  pass-book  (and  it  must  be  so  inferred), 
it  was  an  acknowledgment  by^the  bank  that  the  donor  had  to  his 
credit  in  the  bank  that  much  money;  and  when  actually  delivered, 
we  cannot  see  why  it  did  not  pass  the  right. "  Suppose  Mr.  Thomas, 
instead  of  having  certificates  of  deposits  made  and  entered  by  the 
bank  in  his  bank  book,  had  taken  a  separate  receipt  or  certificate 
of  deposit  for  each  deposit  at  the  time  it  was  made.  Would  not  the 
delivery,  with  words  of  gift  of  each  one,  of  such  receipts  or  cer- 
tificates of  deposit  have  been  as  effectual  in  law  to  pass  the  title 
to  his  money  in  bank  as  the  delivery  of  the  letter  in  Stephenson  v. 
King,  or  the  attorney's  receipt  for  claims  in  his  hands  for  collec- 
tion in  Elara  v.  Keen?  Mr.  Thomas'  bank  book  had  just  been  writ- 
ten up  or  balanced  by  the  bank  and  it  showed  on  its  face  the  bal- 
ance due  to  him  by  the  bank.  It  was  the  bank's  acknowledgment 
of  indebtedness  to  Thomas,  and  the  only  voucher  or  evidence  which 
he  had,  upon  which  the  law  implies  a  promise  to  pay;  and  it  was 
transferable  by  delivery  without  writing,  like  any  other  chose  in 
action.  It  passed  the  equitable  title,  and  that  is  sufficient.  The 
"beneficial  owner"  of  any  chose  in  action  may  sue  upon  it  in  his  own 
name.  Va.  Code  1887,  §  2860.  There  is  a  difference  between  a  sav- 
ings bank  pass-book  and  an  ordinarj^  bank  book,  in  that  by  a  spe- 
cial method  and  agreement,  on  the  mere  presentation  of  the  sav- 
ings bank  pass-book,  the  bank  will  pay,  but  this  is  the  mere  spe- 
cial mode  of  dealing  agreed  on  by  the  parties  in  that  case;  and, 


388  Cases  on  Personal  Property 

though  the  bank  would  have  the  right  to  require  evidence  to  satisfy 
it  that  Mr.  Thomas  had  duly  delivered,  with  words  of  gift  sufficient 
in  law  to  transfer  his  title  to  his  money  in  the  bank  to  his  donee, 
Bettie  Lewis,  his  daughter,  yet  that  would  not,  any  more  than  in  the 
case  of  the  keys,  affect  her  title  and  right  to  demand  the  money, 
which  the  law  would  enforce. 

We  have  given  to  this  case  elaborate  consideration  and  the  closest 
scrutiny ;  and  upon  the  law  and  the  facts,  our  judgment  is  to  affirm 
the  decree  of  the  Chancery  Court  of  the  city  of  Richmond.^^ 

Lacy,  J.,  dissents. 


Check. 
FOXWORTHY  v.  ADAMS  et  al. 
136  Ky.  403,  124  8.  W.  381,  27  L.  E.  A.  (N.  8.)  308.     1910. 
The-  facts  are  stated  in  the  opinion. 

Clay,  C. — T.  S.  Foxwortliy  died,  testate,  in  Nelson  county,  Ken- 
tucky, on  July  10,  1907,  aged  eighty-seven  years.  His  first  wife, 
Nancy  Foxworthy,  died  many  years  ago.  About  eleven  years  prior 
to  his  death,  he  married  appellant,  who  was  then  Minnie  Fitzgerald. 
T.  S.  Foxworthy  had  no  children  by  either  wife.     *     *     * 

For  almost  two  years  prior  to  his  death,  the  testator  was  con- 
fined to  his  house,  and  neai'ly  all  the  time  to  his  bed.  During  that 
time  he  required  constant  nursing  and  attention.  This  duty  fell 
upon  his  wife.  The  testimony  shows  that  it  was  well  and  faithfully 
performed.  *  *  *  Dr.  Charles  McClure,  a  nephew  of  his  first 
wife  and  a  very  close  neighbor,  gave  him  much  medical  attention 
during  this  period  as  his  condition  required.  The  evidence  shows 
that  he,  too,  was  faithful  and  attentive,  and  made  frequent  visits 
to  the  home  of  the  testator.  On  March  19,  1907,  the  testator  drew 
a  check  on  the  People's  Bank  of  Bardstown,  Kentucky,  for  the  sum 
of  $500,  payable  to  the  order  of  appellant,  Minnie  Foxworthy.  On 
March  20,  1907,  a  second  check  was  drawn  on  the  same  bank  for 
a  similar  amount,  payable  to  the  order  of  Charles  McClure,  the 

21  See  Childs'  Pergonal  Property,  §§  222,  224,  225,  229. 

See  Apache  State  Bank  v.  Daniels,  32  Okla.  121,  121  Pae.  237,  40  L.  E.  A. 

(N.  S.)  901. 


Transfer  of  Property  by  Act  of  the  Parties  389 

physician  who  attended  him.  The  evidence  tends  to  show  that  the 
body  of  each  of  these  checks  was  written  by  Dr.  McClure,  and  the 
testator's  name  was  signed  thereto  by  his  wife.  It  further  appears, 
however,  that  she  frequently,  at  the  direction  of  the  testator,  signed 
his  name  to  checks. 

On  ]\Iarch  22,  1907,  J.  C.  Abell,  a  neighbor  and  close  friend  of  the 
testator,  who  frequently  assisted  him  in  the  transaction  of  his  busi- 
ness, wrote,  at  the  request  of  the  testator,  the  following  paper : 

March  22d,  '07. 

I  this  day  give  to  my  wife,  Minnie  F.  Foxworthy,  and  Dr.  Charles, 
each  a  check  for  $500  payable  out  of  my  estate  after  my  death.  It 
being  my  desire  to  make  each  of  them  a  present  for  their  close 
attention  to  me  during  my  sickness ;  not  having  the  ready  cash  on 
hand  I  take  this  method,  as  it  is  my  desire  that  they  shall  each  re- 
ceive the  above  amount.  $180.05  was  due  Dr.  McClure  on  acct.  to 
date.    The  balance,  $319.95, 1  give  to  him  as  a  present. 

T.  S.  Foxworthy. 

Witness:  Jas.  C.  Abell. 

This  paper  was  signed  by  T.  S.  Foxworthy,  and  his  signature  wit- 
nessed by  J.  C.  Abell.  This  writing,  together  with  the  checks,  was 
given  to  Abell  by  the  testator  to  keep.  The  next  morning  the  tes- 
tator sent  for  Abell  and  told  him  to  bring  the  checks  back  to  him, 
but  also  stated  that  if  he  met  Dr.  McClure  to  deliver  the  latter 
his  check.  This  Abell  did.  He  then  returned  the  other  check  to 
Foxworthy,  who  gave  it  to  his  wife  in  Abell 's  presence.  The  dic- 
tated writing  of  March  22,  1907,  Abell  kept  until  after  the  testator's 
death,  the  testator  having  directed  him  so  to  do.  On  the  20th  day  of 
February,  1907,  some  five  months  prior  to  his  death,  the  testator, 
who  then  held  a  note  on  J.  C.  Abell  for  $1,000,  dated  May  29,  1906, 
due  one  day  after  date,  bearing  interest  from  date,  requested  Abell, 
who  happened  to  be  at  his  home,  to  write  upon  the  note  the  following 
indorsement:  "I  this  day  assign  the  principal  of  this  note  to  my 
wife,  Minnie  Foxworthy,  and  the  interest  I  am  to  have  until  my 
death,  this  February  20th,  1907.  Should  I  outlive  my  wife,  then 
it  to  remain  a  part  of  my  estate."  Abell  then  wrote  the  aljove 
assignment  upon  the  note  in  question.  The  testator  signed  his 
name  below  the  assignment,  and  Abell  thereupon  signed  his  name 
as  witness. 

On  August  12,  1907,  Mrs.  Foxworthy  qualified  as  the  testator's 
executrix.    On  that  day  certain  indebtedness  to  the  estate  was  paid. 


390  Cases  on  Personal  Property 

Out  of  this  indebtedness,  the  two  $500  checks,  made  to  Minnie  Fox- 
worthy  and  Dr.  McClure,  were  satisfied  and  paid.  On  December 
12,  1907,  she  made  a  partial  settlement  as  executrix,  and  was  cred- 
ited by  the  two  $500  checks.  On  May  8,  1908,  she  made  final  set- 
tlement with  the  county  court.  On  June  8,  1908,  Martha  Adams 
and  others,  as  legal  heirs  of  the  testator,  filed  exceptions  in  the 
Nelson  county  court  to  said  two  credits  of  $500  each,  and  also 
claimed  that  she  should  be  charged  with  the  Abell  note  of  $1,000 
and  interest,  as  part  of  the  testator's  estate  for  which  she  had  not 
accounted  in  her  settlements.  On  the  trial  of  these  exceptions,  evi- 
dence was  heard  and  reduced  to  writing,  and  signed  by  the  county 
judge,  and  made  a  part  of  and  filed  with  the  settlements.  The 
county  court  surcharged  the  settlement  by  striking  out  the  two 
credits  of  $500  each,  and  holding  that  the  executrix  should  account 
as  such  for  the  Abell  note.  On  appeal  to  the  Nelson  circuit  court, 
the  chancellor  held  that  the  executrix  was  entitled  to  credit  for  the 
two  checks,  but  must  account  for  the  Abell  note  and  interest.  From 
this  judgment  the  executrix  has  appealed,  and  Martha  Adams  and 
others  have  prosecuted  a  cross  appeal. 

We  shall  first  discuss  the  propriety  of  the  court's  action  with  ref- 
erence to  the  two  checks.  The  rule  is  that  a  gift  of  one 's  own  check 
is  incomplete  until  the  check  has  been  paid  or  accepted  by  the  bank. 
"A  check,  being  a  mere  order  or  authority  to  the  payee  to  draw  the 
amount  called  for,  when  given  without  consideration,  may  be  coun- 
termanded or  revoked  by  the  maker  so  long  as  it  remains  unacted 
on  in  the  hands  of  the  payee.  Until  payment  or  acceptance,  there 
is  not  a  complete  delivery  of  the  subject-matter  such  as  is  essential 
to  constitute  a  valid  gift."  14  Am.  &  Eng.  Enc.  Law,  2d  ed.  p.  1030. 
In  the  case  of  Throgmorton  v.  Grigsby,  124  Ky.  512,  99  S.  W.  650, 
it  was  held  that  the  issuance  and  delivery  of  a  check  for  the  purpose 
of  a  gift  is  not  a  delivery  of  the  money,  so  that,  the  check  not  having 
been  paid  or  accepted  by  the  drawee,  the  gift  is  not  completed,  and 
therefore  the  drawer  cannot  be  considered  as  holding  the  money  as 
trustee  for  the  payee.  In  the  case  before  us,  the  checks  were  made 
immediately  payable,  but  they  were  delivered  subject  to  the  terms 
of  the  wi'itten  memorandum  handed  to  Abell.  Appellant  and  Dr. 
Mcpiure  accepted  the  checks  upon  those  terms.  By  such  terms  the 
checks  were  not  even  payable  until  after  the  death  of  the  maker. 
It  is  perfectly  plain,  therefore,  that  the  checks  were  not  good  as  a 
gift  inter  vivos. 

But  it  is  insisted  by  counsel  for  appellant  that  the  checks  have 
sufficient  consideration  to  support  them,  and  are  therefore  collect- 


Transfer  of  Property  by  Act  of  the  Parties  391 

able  as  other  contracts,  no  matter  how  denominated  by  the  maker. 

*  *  *  It  is  the  duty  of  husband  and  wife  to  attend,  nurse,  and 
care  for  each  other  when  either  is  unable  to  care  for  himself. 

*  *  *  We  therefore  conclude  that  neither  the  check  itself,  nor 
the  services  which  appellant  performed,  created  any  obligation 
against  the  estate  of  the  testator, 

A  different  question  is  presented  in  the  case  of  the  cheek  to  Dr. 
MeClure.  It  is  shown  that,  prior  to  the  execution  of  the  check,  he 
had  performed  medical  services  of  the  value  of  $180.05.  *  *  * 
There  is  proof  in  the  record  to  the  effect  that  the  check  was  actu- 
ally given  in  payment  of  the  services  theretofore  rendered  and  of  the 
services  thereafter  to  be  rendered.  *  *  *  We  therefore  con- 
clude that,  as  the  check  to  Dr.  MeClure  is  supported  by  sufficient 
consideration,  appellant  is  entitled  in  her  settlement  to  be  credited 
with  the  amount  thereof. 

"We  next  come  to  a  consideration  of  the  Abell  note.  Did  the 
assignment  and  delivery  of  the  note  constitute  a  valid  gift  inter 
vivos f  The  rule  is  that,  to  constitute  a  valid  "gift  inter  vivos," 
there  must  be  a  gratuitous  and  absolute  transfer  of  the  property 
from  the  donor  to  the  donee,  taking  effect  immediately,  and  fully 
executed  by  a  delivery  of  the  property  by  the  donor  and  acceptance 
thereof  by  the  donee.  Gifts  inter  vivos  have  no  reference  to  the 
future,  but  go  into  immediate  and  absolute  effect.    *    *    * 

*  *  *  We  therefore  conclude  that  the  assignment  and  delivery 
of  the  Abell  note  did  not  constitute  a  valid  gift  inter  vivos. 

The  judgment  is  affirmed  on  the  original  appeal,  and  reversed  on 
the  cross  appeal.22 


VARLEY  V.  SIMS. 


100  Minn.  331,  111  N.  W.  269,  117  Am.  St.  694,  8  L.  R.  A.  (N.  S.) 

828.     1907, 

The  facts  are  stated  in  the  opinion. 

Browx,  J.— The  facts  in  this  case  are  as  follows :  On  November 
29,  1904,  ]\rrs.  C.  H.  Brown,  the  mother  of  the  plaintiff,  had  on 
deposit  in  the  First  National  Bank  of  Grand  Rapid.s,  this  state,  sub- 
ject to  check,  the  sum  of  $1,168.30.     She  was  on  that  date  at  the 

22  See  Childs '  Personal  Property,  §  224. 


392  Cases  on  Personal  Property 

home  of  her  sister,  a  Mrs.  Wright,  at  West  Allis,  Wisconsin,  and 
about  to  undergo  a  serious  surgical  operation.  In  view  of  the 
operation  and  the  probability  of  death  resulting  therefrom,  she 
drew  her  cheek  on  the  Grand  Rapids  bank  for  the  entire  amount 
of  her  deposit  therein,  payable  absolutely  to  plaintiff,  and  left  the 
same  with  Mrs.  Wright,  instructing  her  to  deliver  it  to  plaintiff,  who 
was  not  then  present,  in  the  event  the  operation  resulted  fatally. 
She  also  stated  to  her  sister  that,  if  she  survived  the  operation  the 
check  should  be  returned  to  her.  Thereafter  the  operation  was  per- 
formed, and  Mrs.  Brown  never  regained  consciousness,  but  died. 
Plaintiff  was  notified  of  the  facts  but  was  unable  to  reach  his  mother 
before  her  death  and  the  check  was  not  delivered  to  him  until  after 
that  event.  He  sub.sequently  presented  it  to  the  bank,  but  payment 
was  refused.  Defendant  was  appointed  administrator  of  Mrs. 
Brown 's  estate,  and  the  bank  paid  the  money  to  him.  Plaintiff  there- 
after brought  this  action  to  recover  the  same  from  the  administrator, 
on  the  ground  that  the  delivery  of  the  check,  under  the  circum- 
stances stated,  constituted  a  valid  gift  causa  mortis  to  him  of  the 
funds  in  the  bank.  The  cause  was  tried  below  without  a  jury, 
resulting  in  judgment  for  plaintiff,  from  which  defendant  appealed. 
This  brings  us  to  the  principal  question  in  the  case,  viz.,  whether 
a  bank  check,  unaccepted  by  the  bank,  constitutes  a  transfer  to  the 
payee,  of  either  the  legal  or  equitable  title  to  the  funds  to  which  it 
is  subject,  sufficient  to  sustain  a  gift  causa  mortis.  The  validity 
of  gifts  of  bank  deposits,  evidenced  by  checks,  or  by  the  delivery 
of  pass  books  or  certificates  of  deposit,  has  been  before  the  courts  in 
numerous  cases.  It  is  held  in  a  majority  of  the  states  of  this  coun- 
try, and  perhaps  the  same  rule  prevails  in  England,  that  an  ordinary 
check  upon  a  bank  for  a  part  only  of  the  drawer's  deposit,  unac- 
cepted by  the  bank  before  the  death  of  the  donor,  is  ineffectual  as 
a  gift  causa  mortis,  for  the  reason,  among  others,  that  the  check 
does  not  operate  to  pass  to  the  donee  either  the  legal  or  the  equitable 
title  to  the  funds  in  the  bank ;  in  other  words,  that  the  unaccepted 
check  is  not,  either  in  law  or  equity,  an  assignment  of  the  funds. 
But  a  strong  and  vigorous  minority  hold  that,  where  the  intention 
to  make  a  gift  is  free  from  doubt,  and  no  question  of  fraud  or  the 
rights  of  creditors  is  involved,  the  delivery  of  a  check  for  a  part 
or  the  whole  of  the  deposit  is  sufficient,  though  not  presented  for 
payment  until  after  the  death  of  the  donor.  The  courts  so  holding 
proceed  upon  the  theory  that  the  passing  of  a  present  legal  title  is 
not  essential  to  a  valid  gift,  that  an  equitable  title  is  sufficient,  and 
that  such  a  title  becomes  vested  in  the  donee  at  the  time  the  check 


Tbaksfer  of  Property  by  Act  of  the  Parties  393 

is  delivered,  and  becomes  absolute  on  the  death  of  the  donor.  That 
an  equitable  title  is  sufficient  in  such  cases  is  supported  by  a  long 
list  of  authorities.  Druke  v.  Heiken,  61  Cal.  346,  44  Am.  Rep.  553 ; 
Stephenson  v.  King,  81  Ky.  425,  50  Am.  Rep.  173 ;  Ellis  v.  Secor, 
31  Mich.  185,  18  Am.  Rep.  178 ;  Ridden  v.  Thrall,  125  N.  Y.  572,  11 
L.  R.  A.  684,  21  Am.  St.  Rep.  758,  26  N.  E.  627 ;  Meaeh  v.  Meaeh, 
24  Vt.  591 ;  Basket  v.  Hassell,  107  U.  S.  602,  27  L.  Ed.  500,  2  Sup. 
Ct.  Rep.  415.  An  examination  of  some  of  the  reported  decisions 
where  gifts  of  money  on  deposit  in  banks  have  been  made  by  deliv- 
ery of  a  pass  book  or  unindorsed  certificate  of  deposit  discloses 
a  disposition  on  the  part  of  the  courts  generally  to  sustain  them 
where  the  intention  of  the  donor  is  clear,  and  there  is  no  fraud, 
and  the  rights  of  creditors  are  not  involved.  In  the  case  of  Sheedy 
v.  Roach,  124  Mass.  472,  26  Am.  Rep.  680,  the  court  held  that  a 
deposit  in  a  sa\dngs  bank  might  be  the  subject  matter  of  a  gift  causa 
moriis,  and  the  gift  established  by  proof  of  the  delivery  of  the  pass 
book  accompanied  by  an  assignment  to  the  donee,  though  the  bank 
was  not  informed  of  the  gift  until  after  the  death  of  the  donor.  In 
Conner  v.  Root,  11  Colo.  183,  17  Pac.  773,  the  court  held  that  a 
certificate  of  deposit  might  be  the  subject  of  a  gift  causa  "niortis, 
and,  if  delivered  to  a  third  person  for  the  use  of  the  donee,  the  title 
passed  upon  the  occurrence  of  death,  though  the  certificate  was 
payable  to  the  donor's  order  and  was  not  indorsed  by  her.  In  Mc- 
Guire  v.  Murphy,  107  App.  Div.  104.  94  N.  Y.  Supp.  1005,  the  court 
held  that  there  was  a  sufficient  delivery  of  a  bank  deposit  where  the 
pass  book  and  an  order  on  the  bank  for  the  payment  of  the  amount 
to  the  donee  is  delivered  to  him,  though  the  donor  die  before  presen- 
tation to  the  bank.  In  the  case  of  Policy  v.  Hicks,  58  Ohio  St.  218, 
41  L.  R.  A.  858,  50  N.  E.  809,  the  court  held  that  the  delivery  of 
a  deposit  book  issued  by  a  savings  bank,  accompanied  by  words  of 
gift,  is  sufficient  to  constitute  a  gift  causa  moriis.  Other  cases  along 
this  same  line  might  be  cited  without  number,  but  it  is  unnecessary. 
The  courts  holding  that  the  delivery  of  a  pass  book  or  certificate 
of  deposit  is  sufficient,  distinguish  that  class  of  cases  from  those 
where  a  mere  check  is  delivered  to  the  donee  for  a  part  of  the  fund. 
McGuire  v.  Murphy,  supra.  The  substantial  element  of  distinc- 
tion, as  we  gather  from  reading  the  cases,  is  that  in  the  case  of  a 
check  there  is  no  legal  or  equitable  transfer  or  assignment  of  the 
bank  funds  to  the  donee.  Whether  the  distinction  has  any  logical 
foundation  is,  we  think,  an  open  question.  Of  course,  as  already 
suggested,  to  render  a  gift  of  this  sort  valid,  title  to  the  thing  given 
must  pass  to  the  donee.    Whether  any  title  passed  to  plaintiff  by  the 


394  Cases  on  Personal  Property 

check  in  question  depends  upon  the  further  inquiry  whether  the 
check  operated,  unaccepted  by  the  bank,  as  an  assignment.  Upon 
the  general  proposition  whether  such  is  "the  legal  effect  of  a  check, 
considered  generally  and  not  with  reference  to  gifts,  the  authorities 
are  in  hopeless  conflict.  The  great  majority  of  courts  maintain  the 
doctrine  that  such  a  check,  unaccepted  by  the  bank,  does  not  operate 
either  as  a  legal  or  an  equitable  assignment,  because  there  is  no 
privity  of  contract  between  the  holder  or  payee  and  the  bank.  4  Cyc. 
Law  &  Proc.  p.  49,  and  cases  cited.  Other  courts  insist,  and  upon 
broad  grounds,  that  a  check  is  in  equity  an  assignment,  and  operates, 
as  between  the  drawer  and  the  payee,  as  a  transfer  pro  tanto.  This 
view  of  the  law  is  sustained  by  the  courts  of  Illinois,  Iowa,  Kentucky, 
Nebraska,  Pennsylvania,  South  Carolina  and  Wisconsin.  The  priv- 
ity of  relation  between  the  payee  and  the  bank  is  found  in  the 
implied  obligation  of  the  latter  to  pay  the  funds  deposited  to  whom- 
soever and  whenever  the  depositor  may  direct.  The  authorities,  as 
well  as  the  merits  of  the  question,  are  thoroughly  discussed  in  a 
valuable  note  to  Loan  &  Sav.  Bank  v.  Farmers'  &  M.  Bank,  63  Cent. 
L.  J.  451,  and  referred  to  in  a^  general  way  in  Northern  Trust  Co. 
V.  Rogers,  60  Minn.  208,  51  Am.  St.  Rep.  526,  62  N.  W.  273.  The 
precise  question  has  never  been  deterlnined  by  this  court,  and  its 
solution  is  not  necessary  in  this  'case.  It  is  probable  that  the  rea- 
soning of  those  courts  holding  to  the  position  that  a  check  operates, 
between  the  parties,  as  an  assignment  pro  tanto,  is  th«  better  law, 
and  should  be  adopted,  yet  the  question  is  not  free  from  doubt,  and, 
not  being  involved,  we  pass  it  without  discussion.  In  the  case  at 
bar,  the  check  relied  upon  by  plaintiff  was  for  the  entire  amount  of 
the  deposit  and  in  such  cases  the  authorities  are  nearly  uniform  that 
an  assignment  of  the  whole  fund  results  therefrom.  Brady  v.  Chad- 
bourne,  68  Minn.  117,  70  N.  W.  981;  Hill  v.  Escort,  (Tex.  Civ. 
App.),  86  S.  W.  367;  May  v.  Jones,  87  Iowa,  188,  54  N.  W.  231; 
Kimball  v.  Leland,  110  Mass.  325 ;  Hawes  v.  Blackwell,  107  N.  C. 
196,  22  Am.  St.  Rep.  870,  12  S.  E.  245 ;  Pease  v.  Landauer,  63  Wis. 
20,  53  Am.  Rep.  247,  22  N.  W.  847 ;  Mandeville  v.  Welch,  5  Wheat. 
277,  5  L.  Ed.  87 ;  Walker  v.  Mauro,  18  Mo.  564. 

This  principle  is  conceded  by  counsel  for  appellant,  but  he  con- 
tended on  the  argument,  with  much  earnestness,  that  it  has  no 
application  to  a  check  made  the  basis  of  a  gift  causa  mortis;  that 
the  rule  that  an  ordinary  check  for  the  whole  of  a  fund  operates 
as  an  assignment  from  the  drawer  to  the  payee  applies  only  to 
checks  given  for  a  valuable  consideration.  There  is  authority  for 
this  contention.    Pullen  v.  Placer  County  Bank,  138  Cal.  169,  94 


Transfer  of  Property  by  Act  of  the  Parties  395 

Am.  St.  Rep.  19,  66  Pae.  740,  71  Pae.  83.  But  the  reasoning  upon 
which  the  decisions  so  holding  are  founded  is  not  sound.  Gifts  in 
anticipation  of  death  require  no  consideration  to  support  them. 
They  are  sustained  by  the  courts  upon  the  same  principle  that  all 
intentional  gratuities  are  upheld.  The  law  supplies  a  consideration 
by  intendment,  and  gives  force  to  the  intention  of  the  donor,  and  a 
gift  stands  upon  an  equality  with  a  contract  founded  upon  a  val- 
uable consideration.  The  same  legal  principle  surrounds  and  up- 
holds the  check  designed  as  a  gift  and  that  given  for  value  received. 
Eecent  authorities  sustain  this  view  of  the  law.  Phinney  v.  State, 
36  Wash.  236,  68  L.  R.  A.  119,  78  Pae.  927;  Taylor's  Estate,  154 
Pa.  183,  18  L.  R.  A.  855,  25  Atl.  1061.  See  also  a  valuable  dis- 
cussion of  the  general  question  in  60  Cent.  L.  J.  244,  and  Murphy 
v.  Bordwell,  83  Minn.  54,  52  L.  R.  A.  849,  85  Am.  St.  Rep.  454,  85 
N.  W.  915.  It  is  unnecessary  that  the  check  in  such  cases  distinctly 
state  on  its  face  that  it  covers  the  entire  fund.  The  fact  that  it  does 
may  be  shown  by  proof  on  the  trial.  4  Cyc.  Law  &  Proc.  p.  53, 
and  cases  cited ;  2  Dan.  Neg.  Inst.  1643, 

It  follows  from  what  has  been  said  that  the  conclusion  reached 
by  the  learned  trial  court  was  in  harmony  with  the  legal  rights  of 
the  parties,  and  the  judgment  appealed  from  is  affirmed.^s 


Revocation. 
DORAN  V.  DORAN. 

99  Calif.  311,  33  Pae.  929.     1893. 

The  facts  are  stated  in  the  opinion. 

Belcher,  C. — On  the  30th  day  of  June,  1887,  John  Doran  was 
the  owner  of  a  certain  lot  of  land  in  the  city  of  San  Francisco,  and 

23  See  Childs'  Personal  Property,  §§224,  229. 

The  delivery  of  a  savings  bank  book  constitutes  a  valid  gift  of  the  funds 
represented  thereby.  Ridden  v.  Thrall,  125  N.  Y.  572,  26  N.  E.  627,  21  Am.  St. 
758,  11  L.  R.  A.  684. 

The  maker's  own  note,  being  but  a  promise  to  pay,  docs  not  constitute  a 
valid  gift.  Conrad  ct  al.  v.  Manning  ct  al.,  125  Mich.  77,  83  N.  W.  lO.'JS;  Graff 
V.  Graf,  150  Ky.  226,  150  R.  W.  58. 

Note  of  third  person  may  !)0  valid  gift.  Royston  v.  McCulley,  (Tcnn.  Cli. 
1900)  59  S.  W.  725,  52  L.  R.  A.  899. 

Parol  gift  of  land,  followed  by  possession  and  the  making  of  valuable 
improv(jpients  thereon,  is  vabd.  Bevington  v.  Bevington  et  al.,  133  Iowa  351, 
110  N.  W.  840,  9  L.  R.  A.  (N.  S.)  508, 


396  Cases  on  Personal  Property 

of  $770,  money  on  deposit  to  his  credit  in  the  Hibernia  Savings  & 
Loan  Society  of  San  Francisco.  On  that  day  he  executed  to  the 
defendant,  James  Doran,  a  deed  of  the  lot  and  an  assignment  in 
writing  of  the  pass  book  showing  the  amount  to  his  credit  in  the 
said  bank.  John  and  James  were  brothers,  and  the  sons  of  the  plain- 
tiff. The  plaintiff  seeks  by  this  action  to  have  a  trust  declared  in 
her  favor  as  to  the  real  and  personal  property  so  transferred. 
*  *  *  The  case  was  tried  by  the  court,  and  the  findings  were, 
in  effect,  that  the  said  conveyance  and  assignment  were  absolute, 
and  were  not  made  by  reason  of  any  confidence  John  had  in  de- 
fendant, nor  upon  any  promise  of  defendant  to  reconvey  the  lot  to 
John,  or  to  hold  the  money  for  his  use,  nor  upon  any  promise,  in 
the  event  of  John's  death,  to  convey  the  lot  or  pay  over  any  part  of 
the  money  to  the  plaintiff.  Judgment  was  accordingly  entered  that 
plaintiff  take  nothing  by  the  action,  and  that  defendant  recover 
from  her  his  costs  and  disbursements  therein.  From  this  judgment, 
and  an  order  denying  her  motion  for  new  trial,  the  plaintiff  appeals. 
The  only  point  made  for  reversal  which  need  be  noticed  is  that 
the  findings  were  not  justified  by  the  evidence.  The  proceedings 
at  the  trial  are  briefly  stated  in  the  record  as  follows:  Plaintiff 
introduced  in  evidence  the  deed  and  pass  book  in  question;  the 
deed  expressed  a  nominal  consideration,  and  the  pass  book,  num- 
bered 108,800,  showing  a  balance  to  the  credit  of  the  depositor  of 
$770.  "Proof  was  then  made  that  on  June  30,  1887,  John  Doran 
was  lying  dangerously  ill  at  St.  Mary's  Hospital,  San  Francisco,  and 
expressed  a  desire  to  settle  his  affairs ;  that  the  sick  man  knew  that 
his  mother,  Margaret  Doran,  the  plaintiff,  was  his  heir  at  law; 
that,  for  the  purpose  of  avoiding  the  expense  and  delay  of  probate 
proceedings,  John  determined  to  transfer  all  his  property  "in  trust; 
that  he  was  aware  of  the  risk  he  ran  in  making  such  transfer,  but 
declared  that  he  would  make  his  brother,  James,  the  defendant,  his 
trustee,  knowing  that  his  said  brother  would  do  what  was  right; 
that  thereupon  John  conveyed  to  defendant  the  aforesaid  lot  of  land 
on  Jersey  street,  and  assigned  to  said  defendant  the  said  pass  book 
No.  108,800.  It  was  also  proven  that  John  Doran  died  on  the  5th 
day  of  July,  1887,  intestate,  unmarried,  and  without  issue,  and  that 
his  father  had  predeceased  him.  The  defendant,  James  Doran, 
testified  in  substance  :  "I  am  defendant  in  this  action.  John  Doran 
died  on  or  about  the  5th  day  of  July,  1887.  He  was  my  brother. 
The  plaintiff,  Margaret  Doran,  is  my  mother,  and  mother  of  de- 
ceased. My  father  is  dead.  My  brother,  John,  was  never  married. 
I  was  present  when  John  made  the  transfer  of  the  lot  on  Jersey 


Transfer  of  Property  by  Act  of  the  Parties  397 

street  and  the  Hibemia  Bank  pass  book.  What  my  brother  meant 
when  he  said  I  would  do  what  was  right  was  that  I  would  reconvey 
the  property  to  him  if  he  recovered  from  his  then  sickness.  Nothing 
further  was  said  by  Jolin  on  the  subject.  On  the  morning  of  the 
day  of  his  death,  John  said  to  me  he  was  feeling  awful  bad ;  that 
he  thought  he  was  going  to  die;  that  I  should  hurry  down  to  the 
Hibernia  Bank,  and  get  out  his  money,  and  bring  it  up  to  him.  I 
went  accordingly  to  the  bank,  and  drew  out  his  money.  I  was 
scarcely  absent  more  than  15  minutes,  but  when  I  got  back  John  was 
dead."     *     *     * 

Upon  this  record  of  the  evidence  we  do  not  think  the  findings  in 
relation  to  the  real  property  can  be  disturbed.  An  express  trust  in 
real  property  can  only  be  created  or  declared  by  a  written  instru- 
ment subscribed  by  the  trustor  or  trustee.  Civil  Code,  §  852.  There 
was  therefore  no  express  trust  in  favor  of  the  grantor  or  the  plain- 
tiff, and  no  facts  are  stated  from  which  a  trust  by  operation  of  law 
must  necessarily  arise  in  her  favor.  So  far  as  appears,  the  con- 
veyance was  made  by  the  grantor  of  his  own  motion,  and  without 
any  solicitation,  undue  influence,  or  fraud  on  the  part  of  the  grantee ; 
and  it  may  have  been  intended  to  be  absolute  in  case  of  the  grantor's 
death,  and  to  vest  the  title  in  fee  simple  in  the  grantee ;  and  that 
it  was  so  intended  must,  in  view  of  the  findings,  be  presumed. 

As  to  the  bank  account  the  law  is  different.  An  express  or  im- 
plied trust  in  relation  to  personal  property  may  be  declared  and 
proved  by  parol  (Ilellman  v.  :RrcAVilliams,  70  Cal.  449,  11  Pac.  Rep. 
659;  Perry,  Trusts,  §  86)  :  and  here  the  undisputed  evidence  on  the 
part  of  the  plaintiff  shows  that  the  pass  book  was  assigiied  to  the 
defendant  in  trust  for  the  assignor.  The  respondent,  however,  con- 
tends that  the  assignment  and  delivery  to  him  of  the  pass  book  con- 
stituted a  complete  gift  of  the  money  causa  mortis.  Conceding  this 
to  be  so,  still  a  gift  caiisa  'mortis  may  be  revoked  by  the  donor  at 
any  time  during  his  life,  and  without  the  consent  of  the  donee. 
Civil  Code,  §  1151 ;  Daniel  v.  Smith,  64  Cal.  349,  30  Pac.  Rep.  575; 
Merchant  v.  :\rerchant,  2  Bradf .  Sur.  432 ;  Parker  v.  Marston,  27  Me. 
196.  Here  the  respondent's  own  testimony  very  clearly  shows  that 
the  gift,  if  made,  was  revoked  by  the  donor  before  he  died.  He  tes- 
tified that,  on  the  morning  of  the  day  of  his  death,  John  told  him  to 
"hurry  down  to  the  Hibernia  Bank,  and  got  out  his  money,  and 
bring  it  up  to  him.  I  went  accordingly  to  the  bank,  and  drew  out 
his  money;  *  *  *  but  when  I  got  back  John  was  dead. "  This 
plainly  indicates  that  John  still  claimed  the  money  as  his  own,  and 
intended  to  again  take  it  into  his  possession.    Under  these  circum- 


398  Cases  on  Personal  Property 

stances  it  must  be  held  that  the  respondent  held  the  money  in  trust 
and  as  a  part  of  the  estate  of  John,  and  that  the  plaintiff,  as  the  only 
heir  of  John,  had  a  right  to  have  the  trust  enforced,  and  the  money 
paid  over  to  her. 

"We  advise  that  the  judgment  and  order,  so  far  as  they  relate  to 
the  real  property,  be  affirmed,  and  that,  so  far  as  they  relate  to  the 
money,  be  reversed,  and  the  cause  remanded  for  a  new  trial. 

We  concur:  Searls,  C;  Temple,  C. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion  the 
judgment  and  order,  so  far  as  they  relate  to  the  real  property,  are 
affirmed,  and,  so  far  as  they  relate  to  the  money,  are  reversed,  and 
the  cause  remanded. ^^ 

24  See  Childs'  Personal   Property,  §  229. 


CHAPTER  IX. 
TRANSFER    OF    PROPERTY    BY    OPERATION    OT   LAW. 

Accession. 

Definition — Nature  of. 

BLACKWOOD  TIRE  &  VULCANIZING  CO.  v.  AUTO 
STORAGE  CO. 

133  Tenn.  515,  182  S.  W.  576,  1916  E.  (L.  B.  A.)  254.    1916. 

The  facts  are  stated  in  the  opinion. 

Neil,  C.  J. — The  defendant  sold  an  automobile  to  one  Cooper, 
retaining  title.  Thereafter  Cooper  bought  from  the  plaintiff,  and 
had  fitted  to  the  machine  certain  tire  casings ;  plaintiffs  not  retain- 
ing title.  After  this,  the  machine  not  having  been  paid  for,  the 
defendant  retook  possession,  and  sold  it  in  the  usual  way,  the 
tires  furnished  by  plaintiffs  still  remaining  on  the  machine.  Cooper 
made  no  claim  to  the  tire  casings  when  defendant  retook  the  ma- 
chine, and  made  no  objection  to  the  sale.  After  the  sale,  however, 
at  the  instance  of  plaintiff,  Cooper  sold,  or  purported  to  sell,  these 
tire  casings  to  the  plaintiff:  their  value  at  that  time  to  be  credited 
against  the  charge  which  plaintiff  had  made  against  Cooper  when 
these  tire  casings  were  furnished.  On  this  alleged  title  plaintiff 
brought  its  suit  against  defendant  and  replevied  the  tire  casings. 
The  trial  court  dismissed  the  suit,  and  subsequently  on  appeal 
the  Court  of  Civil  Appeals  affirmed  this  judgment.  We  think 
both  courts  were  correct. 

The  controversy  arises  under  the  law  of  accession.  As  said  in 
Ruling  Case  Law,  vol.  1,  p.  117 : 

"The  word  'accession'  is  used  broadly  in  the  language  of  the 
law  to  signify  the  right  which  an  owner  of  corporeal  property,  real 
or  personal,  has  to  any  increase  thereof  from  any  cause,  either 
natural  or  artificial.     In  this  sense  it  is  broad  enough  to  include 

309 


400  Cases  on  Personal  Property 

additions  to  the  value  of  land  by  buildings,  fences,  etc.,  erected 
on  it,  a  gradual  deposit  of  soil  by  the  action  of  water,  value  added 
to  chattels  by  labor  performed,  the  increase  of  animals,  or  any 
other  mode  by  which  additions  to  property  are  made.  As  a  term 
of  legal  classification,  however,  accession  is  generally  employed  to 
signify  the  acquisition  of  title  to  personal  property  by  its  incorpo- 
ration into  or  union  with  other  property.    *    *    * 

' '  The  general  rule  of  the  common  law  in  regard  to  title  by  acces- 
sion is  that,  whatever  alteration  of  form  has  taken  place  in  per- 
sonal property,  the  owner  is  entitled  to  such  property  in  its  state 
of  improvement,  unless  the  identity  of  the  original  materials  has 
been  destroyed,  or  unless  the  thing  has  been  annexed  to,  and  made 
part  of,  some  other  thing  which  is  the  principal,  or  its  nature  has 
been  changed  from  personal  to  real  property,  but  if  the  thing  itself, 
by  such  acquisition,  is  changed  into  a  different  species,  it  belongs 
to  the  new  operator,  who  has  only  to  make  satisfaction  to  the 
former  proprietor  for  the  materials  which  he  has  so  converted." 

The  proposition  contained  in  the  last  clause  of  the  authority 
quoted  seems  not,  however,  to  apply  in  favor  of  a  willful  tres- 
passer. 

As  between  mortgagor  and  mortgagee,  the  rule  is  that  repairs 
made  by  the  former,  or  at  his  instance,  become  a  part  of  the  prop- 
erty, and  go  wtih  it,  and  inure  to  the  benefit  of  the  mortgagee. 
In  South  worth  v.  Isham,  5  N.  Y.  Super.  Ct.  (3  Sandf.)  448,  it 
appeared  that  a  mortgagor  of  a  vessel  removed  the  old  sails,  which 
were  worn  out,  and  put  on  new  ones,  and  then  the  vessel  passed 
into  the  possession  of  the  mortgagee.  It  was  held  that  the  new 
sails  passed,  as  in  case  of  repairs,  and  that  the  mortgagor  could 
not  maintain  trover  for  the  sails.  In  that  case  the  court  quoted 
with  approval  the  following  passage  from  the  opinion  in  the  case 
of  Holly  V.  Brown,  14  Conn.  266 : 

"If  during  the  term  of  a  mortgage  upon  a  printing  establish- 
ment, the  types  and  other  materials  belonging  to  it  are  removed, 
and  new  ones  supplied  in  their  place,  if  the  new  types  and  mate- 
rials were  procured  for  the  purpose  of  replenishing  the  establish- 
ment mortgaged,  and  of  supplying  the  place  of  articles  belonging 
to  it,  which  had  been  lost  or  destroyed  by  use,  and  were  attached 
to  and  incorporated  with  it,  they  would  become  a  part  of  the 
establishment,  and  by  right  of  accession  belong  to  the  owners  of 
it.  They  would  form  an  incident  to,  and  follow  the  title  of,  the 
printing  establishment,  to  which  they  were  attached,  which  would 
be  the  principal  thing.    As  if  the  borrower  of  a  watch  should  replace 


Transfer  of  Property  by  Operation  of  Law  401 

its  crystal,  or  of  a  musical  instrument  one  of  its  strings,  keys,  or 
pipes,  which  had  been  lost,  destroyed,  or  become  useless  in  his 
service,  in  which  case  they  would  belong  to  the  lender." 

In  ex  parte  Ames,  Fed.  Cas.  No.  323  (1  Low.  561),  it  was  held 
that,  where  a  mortgage  was  made  in  Massachusetts  on  an  unfinished 
locomotive,  the  mortgagee  could  hold,  by  accession,  the  additions 
afterwards  made  by  the  mortgagor  before  his  bankruptcy.    *    *    * 

In  Comins  v.  Newton,  92  Mass.  (10  Allen)  518,  it  was  held  that 
a  rifle  having  a  skeleton  stock  at  the  time  a  mortgage  was  made 
on  it  was  not  so  substantially  changed  by  having  a  new  wooden 
stock,  and  a  new  and  different  kind  of  lock  substituted  for  the 
original  by  way  of  repair,  as  to  terminate  the  lien  of  the  mort- 
gage.    *     *     * 

In  the  case  before  the  court  it  is  to  be  noted  that  the  plaintiff 
in  error  sold  the  tire  casings  outright,  to  Cooper,  and  he  permitted 
these  casings  to  go  with  the  machine  into  the  hands  of  the  defendant 
in  error  without  objection,  and  in  like  manner  permitted  the  sale 
of  the  machine  with  the  tire  casings  attached,  and  never  attempted 
to  retake  these  casings  until  later,  and  then  in  furtherance  of  the 
effort  of  the  plaintiff  in  error  to  regain  them,  and  that  for  this 
purpose  he  endeavored  to  make  sale  of  them  at  that  time  to  the 
plaintiff  in  error.  We  think  it  must  be  laid  down  as  a  general 
principle  that  the  mortgager,  in  making  repairs  on  property  which 
he  has  mortgaged,  must  be  held,  in  the  absence  of  some  distinct 
evidence  to  the  contrary,  to  have  intended  such  repairs  as  a  fixed 
improvement  to  such  property,  since  the  amelioration  inures  not 
only  to  the  benefit  of  the  mortgagee,  but  to  his  own  benefit  as 
well,  in  the  enhancement  of  the  value  of  his  property,  to  the  end 
that  it  may  go  further  toward  relieving  him  of  the  mortgage  debt 
in  case  sale  should  be  made. 

In  the  case  before  us,  not  only  was  Cooper  subject  to  the  pre- 
sumption indicated,  but  his  acts  in  permitting  the  machine  to  go 
back  into  the  hands  of  defendant  in  error,  without  objection 
en  the  subject  of  the  tire  casings,  and  to  be  sold  in  like  manner, 
indicate  as  a  fact  that  it  was  his  purpose  to  make  a  fixed  addition 
to  the  property.  The  plaintiff  in  error,  acquiring  his  title  from 
Cooper,  must  stand  in  his  shoes. 

In  what  has  been  said  we  have  assumed  that  a  sale  of  personal 
property  with  title  retained  to  secure  the  purchase  price  would, 
in  respect  of  the  matter  in  hand,  be  governed  by  the  same  principles 
that  would  control  a  mortgage,  and  we  so  hold.  At  least  in  such 
sales  the  title  retained  is  but  a  form  of  lien.  *  *  * 
C.  P.  P.— 26 


402  Cases  on  Personal  Property 

On  the  grounds  stated,  we  are  of  the  opinion  that  the  judgment 
of  the  Court  of  Civil  Appeals,  sustaining  that  of  the  trial  court 
dismissing  the  action  of  the  plaintiff  in  error,  must  be  affirmed.^ 


Wilful  Trespasser. 
SILSBURY  &  CALKINS  v.  McCOON  &  SHERMAN. 
3  N.  Y.  379,  53  Am.  Dec.  307.     1850. 
Action  of  trover  for  a  quantity  of  whisky. 

[The  facts  appear  to  be  that  on  February  18,  1842,  the  sheriff 
levied  upon  500  bushels  of  grain  owned  and  then  in  the  distillery 
of  one  "Wood,  the  grain  having  been  purchased  by  Wood  for  the 
purpose  of  making  it  into  whisky.  The  grain  was  not  removed 
by  the  sheriff.  Shortly  after,  the  plaintiffs  came  into  possession 
of  the  distillery,  and  manufactured  the  grain  into  whisky.  When 
the  sheriff  came  to  sell  the  grain,  he  was  informed  by  the  plaintiffs 
that  they  had  made  the  grain  into  whisky,  and  that  they  were 
willing  to  pay  for  it,  but  no  agreement  was  reached  concerning  the 
matter  at  the  time.  Later,  the  sheriff  accepted  the  plaintiffs'  note 
for  the  value  of  the  grain,  the  price  agreed  upon  being  fifty  cents 
per  bushel.  On  February  25,  1843,  the  sheriff's  deputy  levied 
upon  and  sold  the  whisky  in  question,  the  defendants  being  the 
purchasers. 

Verdict  for  the  plaintiffs  and  the  defendants  appealed.] 

Ruggles,  J. — It  is  an  elementary  principle  in  the  law  of  all  civi- 
lized communities,  that  no  man  can  be  deprived  of  his  property, 
except  by  his  own  voluntary  act,  or  by  operation  of  law.  The 
thief  who  steals  a  chattel,  or  the  trespasser  who  takes  it  by  force, 
acquires  no  title  by  such  a  wrongful  taking.  The  subsequent  pos- 
session by  the  thief  or  the  trespasser  is  a  continuing  trespass;  and 
if  during  its  continuance,  the  wrongdoer  enhances  the  value  of 
the  chattel  by  labor  and  skill  bestowed  upon  it,  as  by  sawing  logs 
into  boards,  splitting  timber  into  rails,  making  leather  into  shoes, 
or  iron  into  bars,  or  into  a  tool,  the  manufactured  article  still 
belongs  to  the  owner  of  the  original  material,  and  he  may  retake 

1  See  Childs'  Personal  Property,  §  278. 


Transfer  of  Property  by  Operation  of  Law  403 

it  or  recover  its  improved  value  in  an  action  for  damages.  And 
if  the  wrongdoer  sell  the  chattel  to  an  honest  purchaser  having  no 
notice  of  the  fraud  by  which  it  was  acquired,  the  purchaser  obtains 
no  title  from  the  trespasser,  because  the  trespasser  had  none  to 
give.  The  owner  of  the  original  material  may  still  retake  it  in  its 
improved  state,  or  he  may  recover  its  improved  value.  The  right 
to  the  improved  value  in  damages  is  a  consequence  of  the  continued 
ownership.  It  would  be  absurd  to  say  that  the  original  owner  may 
retake  the  thing  by  an  action  of  replevin  in  its  improved  state, 
and  yet  that  he  may  not,  if  put  to  his  action  of  trespass  or  trover, 
recover  its  improved  value  in  damages.  Thus  far,  it  is  conceded 
that  the  common  law  agrees  with  the  civil. 

They  agree  in  another  respect,  to-wit,  that  if  the  chattel  wrong- 
fully taken,  afterwards  come  into  the  hands  of  an  innocent  holder, 
who  believing  himself  to  be  the  owner,  converts  the  chattel  into  a 
thing  of  different  species  so  that  its  identity  is  destroyed,  the 
original  owner  cannot  reclaim  it.  Such  a  change  is  said  to  be 
wrought  when  wheat  is  made  into  bread,  olives  into  oil,  or  grapes 
into  wine.  In  a  case  of  this  kind  the  change  in  the  species  of  the 
chattel  is  not  an  intentional  wrong  to  the  original  o^vner.  It  is 
therefore  regarded  as  a  destruction  or  consumption  of  the  original 
materials,  and  the  true  owner  is  not  permitted  to  trace  their  iden- 
tity into  the  manufactured  article,  for  the  purpose  of  appropriating 
to  his  own  use  the  labor  and  skill  of  the  innocent  occupant  who 
wrought  the  change;  but  he  is  put  to  his  action  for  damages  as 
for  a  thing  consumed,  and  may  recover  its  value  as  it  was  when 
the  conversion  or  consumption  took  place. 

There  is  great  confusion  in  the  books  upon  the  question  what 
constitutes  change  of  identity.  In  one  case  (5  Hen.  7,  fol.  15),  it 
is  said  that  the  o\^^ler  may  reclaim  the  goods  so  long  as  they 
may  be  known,  or  in  other  words,  ascertained  by  inspection.  But 
this  in  many  cases  is  by  no  means  the  best  evidence  of  identity; 
and  the  examples  put  by  way  of  illustration  serve  rather  to  dis- 
prove than  to  establish  the  rule.  The  court  say  that  if  grain  be 
made  into  malt,  it  cannot  be  reclaimed  by  the  owner,  because  it 
cannot  be  kno\\Ti.  But  if  cloth  be  made  into  a  coat,  a  tree  into 
squared  timber,  or  iron  into  a  tool,  it  may.  Now  as  to  the  cases 
of  the  coat  and  the  timber  they  may  or  may  not  be  capable  of 
identification  by  the  senses  merely;  and  the  rule  is  entirely  uncer- 
tain in  its  application ;  and  as  to  the  iron  tool,  it  certainlj''  cannot 
be  identified  as  made  of  the  original  material,  without  other  evi- 
dence.   This  illustration,  therefore,  contradicts  the  rule.    In  another 


404  Cases  on  Personal  Property 

case  (Moore's  Rep.  20),  trees  were  made  into  timber  and  it  was 
adjudged  that  the  owner  of  the  trees  might  reclaim  the  timber, 
"because  the  greater  part  of  the  substance  remained."  But  if 
this  were  the  true  criterion  it  would  embrace  the  cases  of  wheat 
made  into  bread,  milk  into  cheese,  grain  into  malt,  and  others 
which  are  put  in  the  books  as  examples  of  a  change  of  identity. 
Other  writers  .say  that  when  the  thing  is  so  changed  that  it  can 
not  be  reduced  from  its  new  form,  to  its  former  state,  its  identity 
is  gone.  But  this  would  include  many  cases  in  which  it  has  been 
said  by  the  courts  that  the  identity  is  not  gone;  as  the  case  of 
leather  made  into  a  garment,  logs  into  timber  or  boards,  cloth  into 
a  coat,  etc.  There  is,  therefore,  no  definite  settled  rule  on  this 
question ;  and  although  the  want  of  such  a  rule  may  create  embar- 
rassment in  a  case  in  which  the  owner  seeks  to  reclaim  his  property 
from  the  hands  of  an  honest  possessor;  it  presents  no  difficulty 
where  he  seeks  to  obtain  it  from  the  wrongdoer;  provided  the 
common  law  agrees  with  the  civil  in  the  principle  applicable  to 
such  a  case. 

The  acknowledged  principle  of  the  civil  law  is  that  a  wilful 
wrongdoer  acquires  no  property  in  the  goods  of  another,  either 
by  the  wrongful  taking  or  by  any  change  wrought  in  them  by  his 
labor  or  skill,  however  great  that  change  may  be.  The  new  prod- 
uct, in  its  improved  state,  belongs  to  the  owner  of  the  original 
materials,  provided  it  be  proved  to  have  been  made  from  them ; 
the  trespasser  loses  his  labor,  and  that  change  which  is  regarded 
as  a  destruction  of  the  goods,  or  an  alteration  of  their  identity  in 
favor  of  an  honest  possessor,  is  not  so  regarded  as  between  the 
original  owner  and  a  wilful  violator  of  his  right  of  property. 

These  principles  are  to  be  found  in  the  digest  of  Justinian  (Lib. 
10,  tit.  4,  leg.  12,  Par.  3).  "If  any  one  shall  make  wine  with  my 
grapes,  oil  with  my  olives,  or  garments  with  my  wool,  knowing  they 
are  not  Ms  own,  he  shall  be  compelled  by  action  to  produce  the  said 
wine,  oil,  or  garments."  So  in  Vinnius'  Institutes,  tit.  1,  pi.  25. 
"He  who  knows  the  material  is  another's  ought  to  be  considered 
in  the  same  light  as  if  he  had  made  the  species  in  the  name  of  the 
owner,  to  whom  also  he  is  to  be  understood  to  have  given  his  labor." 

The  same  principle  is  stated  by  Puffendorf  in  his  Law  of  Nature 
and  of  Nations  (b.  4,  ch.  7,  Par.  10),  and  in  Wood's  Institutes 
of  the  civil  law,  p.  92,  which  are  cited  at  large  in  the  opinion  of 
Jewett,  J.,  delivered  in  this  case  in  the  supreme  court  (4  Denio 
338),  and  which  it  is  unnecessary  here  to  repeat.  In  Brown's 
Civil  and  Admiralty  Law,  p.  240,  the  writer  states  the  civil  law 


Transfer  of  Property  by  Operation  of  Law  405 

to  be  that  the  original  o'wner  of  any  thing  improved  by  the  act 
of  another,  retained  his  ownership  in  the  thing  so  improved,  unless 
it  was  changed  into  a  different  species ;  as  if  his  grapes  were  made 
into  wine,  the  wine  belonged  to  the  maker,  who  was  only  obliged 
to  pay  the  owner  for  the  value  of  his  grapes.  The  species  how- 
ever must  be  incapable  of  being  restored  to  its  ancient  form ;  and 
the  materials  must  have  been  taken  in  ignorance  of  their  being  the 
property  of  another. 

But  it  was  thought  in  the  court  below  that  this  doctrine  had 
never  been  adopted  into  the  common  law,  either  in  England  or 
here;  and  the  distinction  between  a  wilful  and  an  involuntary 
wrongdoer  herein  before  mentioned,  was  rejected  not  only  on  that 
ground  but  also  because  the  rule  was  supposed  to  be  too  harsh  and 
rigorous  against  the  wrondoer. 

It  is  true  that  no  case  has  been  found  in  the  English  books  in 
which  that  distinction  has  been  expressly  recognized;  but  it  is 
equally  true  that  in  no  case  until  the  present  has  it  been  repudi- 
ated or  denied.  The  common  law  on  this  subject  was  evidently 
borrowed  from  the  Roman  at  an  early  day;  and  at  a  period  when 
the  common  law  furnished  no  rule  whatever  in  a  case  of  this  kind. 
Bracton,  in  his  treatise  compiled  in  the  reign  of  Henry  III.,  adopted 
a  portion  of  Justinian's  Institutes  on  this  subject  without  noticing 
the  distinction ;  and  Blackstone,  in  his  commentaries,  vol.  2,  p.  404, 
in  stating  what  the  Roman  law  was,  follows  Bracton,  but  neither 
of  these  writers  intimate  that  on  the  point  in  question  there  is  any 
difference  between  the  civil  and  the  common  law.  The  authorities 
referred  to  by  Blackstone  in  support  of  his  text  are  three  only. 
The  first  in  Brooks'  Abridgment,  tit.  Property  23,  is  the  case  from 
the  Year  Book,  5  H.  7,  fol.  15  (translated  in  a  note  to  4  Denio  335), 
in  which  the  owner  of  leather  brought  trespass  for  taking  slippers 
and  boots,  and  the  defendant  pleaded  that  he  was  the  owner  of 
the  leather  and  bailed  it  to  J.  S.,  who  gave  it  to  the  plaintiff,  who 
manufactured  it  into  slippers  and  boots,  and  the  defendant  took 
them  as  he  lawfully  might.  The  plea  was  held  good  and  the  title 
of  the  owner  of  the  leather  unchanged.  The  second  reference  is 
to  a  ca.se  in  Sir  Francis  Moore's  reports,  p.  20,  in  which  the  action 
was  trespass  for  taking  timber,  and  the  defendant  justified  on  the 
ground  that  A.  entered  on  his  land  and  cut  down  trees  and  made 
timber  thereof,  and  carried  it  to  the  place  where  the  trespass  was 
alleged  to  have  been  committed,  and  afterwards  gave  it  to  the 
plaintiff,  and  that  the  defendant  therefore  took  the  timber  as  he 
lawfully  might.     In  these  cases  the  chattels  had  passed  from  the 


406  Cases  on  Personal  Property 

hands  of  the  original  trespasser  into  the  hands  of  a  third  person ; 
in  both  it  was  held  that  the  title  of  the  original  owner  was 
unchanged,  and  that  he  had  a  right  to  the  property  in  its  improved 
state,  against  the  third  person  in  possession.  They  are  in  con- 
formity with  the  rule  of  the  civil  law;  and  certainly  fail  to  prove 
any  difference  between  the  civil  and  the  common  law  on  the  point 
in  question.  The  third  case  cited  is  from  Popham's  reports,  p.  38, 
and  was  a  case  of  confusion  of  goods.  *  *  *  Neither  Bracton 
nor  Blackstone  have  pointed  out  any  difference  except  in  the  case 
of  confusion  of  goods  between  the  common  law  and  the  Roman, 
from  which  on  this  subject  our  law  has  mainly  derived  its  prin- 
ciples. 

So  long  as  property  wrongfully  taken  retains  its  original  form 
and  substance,  or  may  be  reduced  to  its  original  materials,  it 
belongs,  according  to  the  admitted  principles  of  the  common  law, 
to  the  original  owner,  without  reference  to  the  degree  of  improve- 
ment, or  the  additional  value  given  to  it  by  the  labor  of  the  wrong- 
doer. Nay,  more,  this  rule  holds  good  against  an  innocent  pur- 
chaser from  the  wrongdoer,  although  its  value  be  increased  an 
hundred  fold  by  the  labor  of  the  purchaser.  This  is  a  necessary 
consequence  of  the  continuance  of  the  original  ownership. 

There  is  no  satisfactory  reason  why  the  wrongful  conversion 
of  the  original  materials  into  an  article  of  a  different  name  or  a 
different  species  should  work  a  transfer  of  the  title  from  the  true 
owner  to  the  trespasser,  provided  the  real  identity  of  the  thing 
can  be  traced  by  evidence.  The  difficulty  of  proving  the  identity 
is  not  a  good  reason.  It  relates  merely  to  the  convenience  of  the 
remedy,  and  not  at  all  to  the  right.  There  is  no  more  difficulty  or 
uncertainty  in  proving  that  the  whisky  in  question  was  made  of 
Wood's  corn,  than  there  would  have  been  in  proving  that  the  plain- 
tiff had  made  a  cup  of  his  gold,  or  a  tool  of  his  iron ;  and  yet  in  those 
instances,  according  to  the  English  cases,  the  proof  would  have 
been  unobjectionable.  In  all  cases  where  the  new  product  can  not 
be  identified  by  mere  inspection,  the  original  material  must  be 
traced  by  the  testimony  of  witnesses  from  hand  to  hand  through 
the  process  of  transformation. 

Again.  The  court  below  seem  to  have  rejected  the  rule  of  the 
civil  law  applicable  to  this  case,  and  to  have  adopted  a  principle 
not  heretofore  known  to  the  common  law ;  and  for  the  reason  that 
the  rule  of  the  civil  law  was  too  rigorous  upon  the  wrongdoer,  in 
depriving  him  of  the  benefit  of  his  labor  bestowed  upon  the  goods 
wrongfully  taken.     But  we  think  the  civil  law  in  this  respect  is 


Transfer  of  Property  by  Operation  of  Law  407 

in  conformity  not  only  with  plain  principles  of  morality,  but  sup- 
ported by  cogent  reasons  of  public  policy;  while  the  rule  adopted 
by  the  court  below  leads  to  the  absurdity  of  treating  the  wilful 
trespasser  with  greater  kindness  and  mercy  than  it  shows  to  the 
innocent  possessor  of  another  man's  goods.  A  single  example  may 
suffice  to  prove  this  to  be  so.  A  trespasser  takes  a  quantity  of  iron 
ore  belonging  to  another  and  converts  it  into  iron,  thus  changing 
the  species  and  identity  of  the  article :  the  owner  of  the  ore  may 
recover  its  value,  in  trover  or  trespass;  but  not  the  value  of  the 
iron,  because  under  the  rule  of  the  court  below  it  would  be  unjust 
and  rigorous  to  deprive  the  trespasser  of  the  value  of  his  labor 
in  the  transmutation.  But  if  the  same  trespasser  steals  the  iron 
and  sells  it  to  an  innocent  purchaser,  who  works  it  into  cutlery, 
the  owner  of  the  iron  may  recover  of  the  purchaser  the  value  of 
the  cutlery,  because  by  this  process  the  original  material  is  not 
destroyed,  but  remains,  and  may  be  reduced  to  its  former  state; 
and  according  to  the  rule  adopted  by  the  court  below  as  to  the 
change  of  identity  the  original  ownership  remains.  Thus  the  inno- 
cent purchaser  is  deprived  of  the  value  of  his  labor,  while  the  guilty 
trespasser  is  not. 

The  rule  adopted  by  the  court  below  seems,  therefore,  to  be 
objectionable,  because  it  operates  unequally  and  unjustly.  It 
not  only  divests  the  true  owner  of  his  title,  without  his  consent ; 
but  it  obliterates  the  distinction  maintained  by  the  civil  law,  and 
as  we  think  by  the  common  law,  between  the  guilty  and  the  inno- 
cent; and  abolishes  a  salutary  check  against  violence  and  fraud 
upon  the  rights  of  property. 

"We  think,  moreover,  that  the  law  on  this  subject  has  been  settled 
by  judicial  decisions  in  this  country.  In  Betts  v.  Lee  (5  John.  349) , 
it  was  decided  that  as  against  a  trespasser  the  original  owner  of 
the  property  may  seize  it  in  its  new  shape,  whatever  alteration  of 
form  it  may  have  undergone,  if  he  can  prove  the  identity  of  the 
original  materials.  That  was  a  case  in  which  the  defendant  had 
cut  down  the  plaintiff's  trees,  and  made  them  into  shingles.  So 
in  Curtis  v.  Groat  (6  John.  169),  a  trespasser  cut  wood  on  another's 
land  and  converted  it  into  charcoal.  It  was  held  that  the  charcoal 
still  belonged  to  the  owner  of  the  wood.  Here  was  a  change  of  the 
wood  into  an  article  of  different  kind  and  species.  No  part  of  the 
substance  of  the  wood  remained  in  its  original  state;  its  identity 
could  not  be  ascertained  by  the  senses,  nor  could  it  be  restored  to 
what  it  originally  was.  That  case  distinctly  recognizes  the  principle 
that  a  wilful  trespasser  cannot  acquire  a  title  to  property  merely 


408  Cases  on  Personal  Property 

by  changing  it  from  one  species  to  another.  And  the  late  Chan- 
cellor Kent,  in  his  Commentaries  (Vol.  2,  p.  363),  declares  that  the 
English  law  will  not  allow  one  man  to  gain  a  title  to  the  property 
of  another  upon  the  principle  of  accession,  if  he  took  the  other's 
property  wilfully  as  a  trespasser;  and  that  it  was  settled  as  early 
as  the  time  of  the  year  books,  that  whatever  alteration  of  form 
any  property  had  undergone,  the  owner  might  seize  it  in  its  new 
shape,  if  he  could  prove  the  identity  of  the  original  materials. 

The  same  rule  has  been  adopted  in  Pennsylvania.  (Snyder  v. 
Vaux,  2  Rawle  427. )  And  in  Maine  and  Massachusetts  it  has  been 
applied  to  a  wilful  intermixture  of  goods.  (Ryder  v.  Hathaway, 
21  Pick.  304,  5 ;  Wingate  v.  Smith,  7  Shep.  287 ;  Willard  v.  Rice, 
11  Mete.  493.) 

We  are,  therefore,  of  opinion  that  if  the  plaintiffs  below  in  con- 
verting the  corn  into  whisky  knew  that  it  belonged  to  Wood,  and 
that  they  were  thus  using  it  in  violation  of  his  right,  they  acquired 
no  title  to  the  manufactured  article,  which  although  changed  from 
the  original  material  into  another  of  different  nature,  yet  being  the 
actual  product  of  the  com,  still  belonged  to  Wood.  The  evidence 
offered  by  the  defendants  and  rejected  by  the  circuit  judge  ought 
to  have  been  admitted. 

The  right  of  Wood's  creditors  to  seize  the  whisky  by  their  execu- 
tion is  a  necessary  consequence  of  Wood's  ownership.  Their  right 
is  paramount  to  his,  and  of  course  to  his  election  to  sue  in  trover 
or  trespass  for  the  corn. 

The  judgment  of  the  supreme  court  should  be  reversed  and  a  new 
trial  ordered. 

Gardiner,  Jewett,  Hurlbut,  and  Pratt,  Js.,  concurred. 

Bronson,  Ch.  J. — Two  very  able  arguments  here,  against  the 
opinion  which  I  delivered  when  the  case  was  before  the  supreme 
court  (4  Denio  332),  have  only  served  to  confirm  me  in  the  con- 
clusion at  which  I  then  arrived.  I  shall  add  but  little  now  to 
Avhat  I  said  on  the  former  occasion. 

The  owner  may,  as  a  general  rule,  follow  and  retake  the  property 
of  which  he  has  been  wrongfully  deprived  so  long  as  the  same 
thing  remains,  though  it  may  have  been  changed  in  form  and 
value  by  the  labor  and  skill  of  the  wrongdoer.  But  when,  as  in 
this  case,  the  identity  of  the  thing  has  been  destroyed  by  a  chemical 
process,  so  that  the  senses  can  no  longer  take  cognizance  of  it — 
when  it  has  not  only  changed  its  form  and  appearance,  but  has  so 
combined  with  other  elements  that  it  has  ceased  to  be  the  same 


Transfer  op  Property  by  Operation  of  Law  409 

thing,  and  become  something  else,  the  owner  can,  I  think,  follow  it 
no  longer :  his  remedy  is  an  action  for  damages.  Such  I  take  to  be 
the  rule  of  the  common  law ;  and  that  is  our  law. 

The  rule  for  which  the  defendants  contend,  that  in  the  case  of 
a  wilful  trespass,  the  owner  may  follow  and  retake  his  property 
after  it  has  been  changed  into  a  thing  of  a  different  species — 
that  he  may  trace  corn  into  whisky,  and  take  the  new  product — 
is  open  to  several  objections.  First:  It  would  be  nearly  or  quite 
impossible  to  administer  such  a  rule  in  trials  by  jury.  Second: 
The  rule  would  often  work  injustice,  by  going  beyond  the  proper 
measure  of  either  redress  or  punishment ;  while  an  action  for  dam- 
ages would  render  exact  justice  to  both  parties.  It  is  very  true 
that  a  wilful  trespasser  should  be  punished ;  but  that  proves  noth- 
ing. All  agree  that  he  should  be  made  to  suffer ;  but  the  mode  and 
measure  of  punishment  are  questions  which  still  remain.  If  one 
has  knowingly  taken  six  pence  worth  of  his  neighbor's  goods  as  a 
trespasser,  he  should  neither  be  imprisoned  for  life,  nor  should  he 
forfeit  a  thousand  dollars.  We  should  not  lose  sight  of  the  fact, 
that  the  rule  now  to  be  established  is  one  for  future,  as  well  as 
present  use ;  and  it  may  work  much  greater  injustice  in  other  cases 
than  it  can  in  this.  Third :  There  is  no  authority  at  the  common 
law  for  following  and  retaking  the  new  product  in  a  case  like  this. 
I  make  the  remark  with  the  more  confidence,  because  the  very 
diligent  counsel  for  the  defendants,  after  having  had  several  years, 
pending  this  controversy,  for  research,  has  only  been  able  to  pro- 
duce some  dicta  of  a  single  jurist,  without  so  much  as  one  common 
law  adjudication  in  support  of  the  rule  for  which  he  contends. 
He  is  driven  to  the  civil  law;  and  then  the  argument  is,  that 
because  we,  in  common  with  the  civilians,  allow  the  owner  to  retake 
his  property  in  certain  cases,  we  must  be  deemed  to  have  adopted 
the  rule  of  the  civil  law  on  this  subject  in  its  whole  extent.  But 
that  is  a  nan  sequitur.  It  often  happens  that  our  laws  and  those 
of  the  Romans — and,  indeed,  of  all  civilized  nations — are  found 
to  agree  in  some  particulars,  while  they  are  widely  different  in 
others ;  and  this  is  true  of  laws  relating  to  a  single  subject.  There 
is  no  force,  therefore,  in  the  argument,  that  because  our  law  touch- 
ing this  matter  is  to  some  extent  like  the  civil  law,  it  may  be  pre- 
sumed that  the  two  systems  are  alike  in  every  particular.  And 
clearly,  the  burden  of  showing  that  the  Roman  law  is  our  law, 
lies  on  those  who  affirm  that  fact.  There  is  not  only  the  absence 
of  any  common  law  adjudication  in  favor  of  the  rule  for  which 
the  defendants  contend,  but  in  one  of  the  earliest  eases  on  the  sub- 


410  Cases  on  Personal  Property 

jeet  to  be  found  in  our  books  (Year  Book,  5  H.  7,  fol.  15,  4  Denio 
335,  note),  the  court  plainly  recognized  the  distinction  which  has 
been  mentioned,  and  admitted  that  the  owner  could  not  retake  the 
property  after  its  identity  had  been  destroyed;  and  "grain  taken 
and  malt  made  of  it"  was  given  as  an  example. 

There  are  many  cases  where  the  title  to  a  personal  chattel  may 
be  turned  into  a  mere  right  of  action,  without  the  consent  of  the 
owner,  although  the  thing  was  taken  by  a  wilful  trespasser,  or  even 
by  a  thief.  If  a  man  steal  a  piece  of  timber,  and  place  it  as  a  beam 
or  rafter  in  his  house ;  or  a  nail,  and  drive  it  into  his  ship ;  or  paint, 
and  put  it  upon  his  carriage,  the  owner  cannot  retake  his  goods, 
but  is  put  to  his  action  for  damages;  and  this  is  so  in  the  civil, 
as  well  as  at  the  common  law.  If  a  thief  take  water  from  another 's 
cistern,  and  use  it  in  making  beer;  or  salt,  and  use  it  in  pickling 
pork ;  or  fuel,  and  use  it  in  smoking  hams,  I  suppose  no  one  will 
say,  that  the  owner  of  the  water,  the  salt  or  the  fuel  may  seize  the 
beer,  the  pork  or  the  hams.  And  there  is  no  better  reason  for 
giving  him  the  new  product,  where  sand  is  made  into  glass,  malt 
into  beer,  coal  into  gas,  or  grain  into  whisky.  In  the  case  now 
before  us,  the  civilians  would  not  go  so  far  as  to  say,  that  the 
owner  of  the  grain  might  take  the  swine  which  were  fattened 
on  the  refuse  of  the  grain  after  it  had  gone  through  the  process 
of  distillation.  And  yet  that  would  hardly  be  more  unjust  or 
absurd  than  it  would  be  to  give  him  the  whisky.  There  must  be 
a  limit  somewhere;  and  I  know  of  none  which  is  more  safe,  prac- 
tical and  just  than  that  which  allows  the  owner  to  follow  a  chattel 
until  it  has  either  been  changed  into  a  different  species,  or  been 
adjoined  to  something  else,  which  is  the  principal  thing ;  and  stops 
there.  Thus  far  our  courts  have  gone,  and  there  they  have  stopped. 
"We  have  neither  precedent  nor  reason  in  favor  of  taking  another 
step ;  and  I  cannot  take  it. 

Judge  Harris  agrees  with  me  in  the  opinion  that  the  judgment 
of  the  supreme  court  is  right,  and  should  be  affirmed. 

Taylor,  J.,  did  not  hear  the  argument,  and  gave  no  opinion. 

Judgment  reversed? 

2  See  Childs'  Personal  Property,  §280. 


Tbansfer  of  Property  by  Operation  of  Law  411 

Innocent  Trespasser. 
THE  ISLE  ROYALE  MINING  CO.  v.  HERTIN  et  al. 
37  Mich.  332,  26  Am.  Rep.  520.    1877. 
The  facts  are  stated  in  the  opinion. 

Cooley,  C.  J. — The  parties  to  this  suit  were  owners  of  adjoining 
tracts  of  timbered  lands.  In  the  winter  of  1873-4  defendants  in 
error,  who  were  plaintiffs  in  the  court  below,  in  consequence  of 
a  mistake  respecting  the  actual  location,  went  upon  the  lands  of  the 
mining  company  and  cut  a  quantity  of  cord  wood,  which  they  hauled 
and  piled  on  the  bank  of  Portage  Lake.  The  next  spring  the  wood 
was  taken  possession  of  by  the  mining  company,  and  disposed 
of  for  its  own  purposes.  The  wood  on  the  bank  of  the  lake  was 
worth  $2,871/4  per  cord,  and  the  value  of  the  labor  expended  by 
plaintiffs  in  cutting  and  placing  it  there  was  $1,871/8  per  cord.  It 
was  not  clearly  shown  that  the  mining  company  had  knowledge 
of  the  cutting  and  hauling  by  the  plaintiffs  while  it  was  in  prog- 
ress. After  the  mining  company  had  taken  possession  of  the  wood, 
plaintiffs  brought  this  suit.     *    *     * 

The  circuit  judge  instructed  the  jury  as  follows: 

"If  you  find  that  the  plaintiffs  cut  the  wood  from  defendant's 
land  by  mistake  and  without  any  wilful  negligence  or  wrong,  I 
then  charge  you  that  the  plaintiffs  are  entitled  to  recover  from  the 
defendant  the  reasonable  cost  of  cutting,  hauling  and  piling  the 
same." 

This  presents  the  only  question  it  is  necessary  to  consider  on 
this  record.  The  jury  returned  a  verdict  for  the  plaintiffs. 

Some  facts  appear  by  the  record  which  might  perhaps  have  war- 
ranted the  circuit  judge  in  submitting  to  the  jury  the  question 
whether  the  proper  authorities  of  the  mining  company  were  not 
aware  that  the  wood  was  being  cut  by  the  plaintiffs  under  an  honest 
mistake  as  to  their  rights,  and  were  not  placed  by  that  knowledge 
under  obligation  to  notify  the  plaintiffs  of  their  error.  But  as 
the  case  was  put  to  the  jury,  the  question  presented  by  the  record 
is  a  narrow  question  of  law,  which  may  be  stated  as  follows : 
whether,  where  one  in  an  honest  mistake  regarding  his  rights  in 
good  faith  performs  labor  on  the  property  of  another,  the  benefit 
of  which  is  appropriated  by  the  owner,  the  person  performing  such 
labor  is  not  entitled  to  be  compensated  therefor  to  the  extent  of 


412  Cases  on  Personal  Property 

the  benefit  received  by  the  owner  therefrom?  The  affirmative  of 
this  proposition  the  plaintiffs  undertook  to  support,  having  first 
laid  the  foundation  for  it  by  shoAving  the  cutting  of  the  wood  under 
an  honest  mistake  as  to  the  location  of  their  laud,  the  taking  pos- 
session of  the  wood  afterwards  by  the  mining  company,  and  its 
value  in  the  condition  in  which  it  then  was  and  where  it  was,  as 
compared  with  its  value  standing  in  the  woods. 

We  understand  it  to  be  admitted  by  the  plaintiffs  that  no  author- 
ity can  be  found  in  support  of  the  proposition  thus  stated.  It  is 
conceded  that  at  the  common  law  when  one  thus  goes  upon  the 
land  of  another  on  an  assumption  of  ownership,  though  in  perfect 
good  faith  and  under  honest  mistake  as  to  his  rights,  he  may  be 
held  responsible  as  a  trespasser.  His  good  faith  does  not  excuse 
him  from  the  payment  of  damages,  the  law  requiring  him  at  his 
peril  to  ascertain  what  his  rights  are,  and  not  to  invade  the  pos- 
session, actual  or  constructive,  of  another.  If  he  cannot  thus  pro- 
tect himself  from  the  payment  of  damages,  still  less,  it  would  seem, 
can  he  establish  in  himself  any  affirmative  rights,  based  upon  his 
unlawful,  though  unintentional  encroachment  upon  the  rights  of 
another.  Such  is  unquestionably  the  rule  of  the  common  law, 
and  such  it  is  admitted  to  be. 

It  is  said,  however,  that  an  exception  to  this  rule  is  admitted 
under  certain  circumstances,  and  that  a  trespasser  is  even  per- 
mitted to  make  title  in  himself  to  the  property  of  another,  where 
in  good  faith  he  has  expended  his  own  labor  upon  it,  under  cir- 
cumstances which  would  render  it  grossly  unjust  to  permit  the 
other  party  to  appropriate  the  benefit  of  such  labor.  The  doctrine 
here  invoked  is  the  familiar  one  of  title  by  accession,  and  though 
it  is  not  claimed  that  the  present  case  is  strictly  within  it,  it  is 
insisted  that  it  is  within  its  equity,  and  that  there  would  be  no 
departure  from  settled  principles  in  giving  these  plaintiffs  the 
benefit  of  it. 

The  doctrine  of  title  by  accession  is  in  the  common  law  as  old 
as  the  law  itself,  and  was  previously  known  in  other  systems.  Its 
general  principles  may  therefore  be  assumed  to  be  well  settled. 
A  wilful  trespasser  who  expends  his  money  or  labor  upon  the 
property  of  another,  no  matter  to  what  extent,  will  acquire  no 
property  therein,  but  the  owner  may  reclaim  it  so  long  as  its 
identity  is  not  changed  by  conversion  into  some  new  product. 
Indeed  some  authorities  hold  that  it  may  be  followed  even  after  its 
identity  is  lost  in  a  new  product;  that  grapes  may  be  reclaoned 
after  they  have  been  converted  into  wine,  and  grain  in  the  form 


Transfer  of  Property  by  Operation  of  Law  -113 

of  distilled  liquors.  Silsbui-y  v.  McCoon,  3  N.  Y.  379.  See  Riddle 
V.  Driver,  12  Ala.  590.  And  while  other  authorities  refuse  to  go 
so  far,  it  is  on  all  hands  conceded  that  where  the  appropriation  of 
the  property  of  another  was  accidental  or  tjirough  mistake  of  fact, 
and  labor  has  in  good  faith  been  expended  upon  it  which  destroys 
its  identity,  or  converts  it  into  something  substantially  different, 
and  the  value  of  the  original  article  is  insignificant  as  compared 
with  the  value  of  the  new  product,  the  title  of  the  property  in 
its  converted  form  must  be  held  to  pass  to  the  person  by  whose 
labor  in  good  faith  the  change  has  been  wrought,  the  original  owner 
being  permitted,  as  his  remedy,  to  recover  the  value  of  the  article 
as  it  was  before  the  conversion.  This  is  a  thoroughly  equitable 
doctrine,  and  its  aim  is  so  to  adjust  the  rights  of  the  parties  as  to 
save  both,  if  possible,  or  as  nearly  as  possible,  from  any  loss.  But 
where  the  identity  of  the  original  article  is  susceptible  of  being 
traced,  the  idea  of  a  change  in  the  property  is  never  admitted, 
unless  the  value  of  that  which  has  been  expended  upon  it  is  suffi- 
ciently great,  as  compared  with  the  original  value,  to  render  the 
injustice  of  permitting  its  appropriation  by  the  original  owner 
so  gross  and  palpable  as  to  be  apparent  at  the  first  blush.  Per- 
haps no  case  has  gone  further  than  Wetherbee  v.  Green,  22  Mich. 
311,  in  which  it  was  held  that  one  who,  by  unintentional  trespass, 
had  taken  from  the  land  of  another  young  trees  of  the  value  of 
$25,  and  converted  them  into  hoops  worth  $700,  had  thereby  made 
them  his  own,  though  the  identity  of  trees  and  hoops  was  perfectly 
capable  of  being  traced  and  established. 

But  there  is  no  such  disparity  in  value  between  the  standing 
trees  and  the  cord  wood  in  this  case  as  was  found  to  exist  between 
the  trees  and  the  hoops  in  "Wetherbee  v.  Green.  The  trees  are 
not  only  susceptible  of  being  traced  and  identified  in  the' wood, 
but  the  difference  in  value  between  the  two  is  not  so  great  but 
that  it  is  conceivable  the  owner  may  have  preferred  the  trees 
standing  to  the  wood  cut.  The  cord  wood  has  a  higher  market 
value,  but  the  owner  may  have  chosen  not  to  cut  it,  expecting  to 
make  some  other  use  of  the  trees  than  for  fuel,  or  anticipating  a 
considerable  rise  in  value  if  they  were  allowed  to  grow.  It  cannot 
be  assumed  as  a  rule  that  a  Vnan  prefers  his  trees  cut  into  cord 
wood  rather  than  left  .standing,  and  if  his  right  to  leave  them  uncut 
is  interfered  with  even  by  mistake,  it  is  manifestly  just  that  the 
consequences  should  fall  upon  the  person  committing  the  mistake, 
and  not  upon  him.  Nothing  could  more  encourage  carelessness 
than  the  acceptance  of  the  principle  that  one  who  by  mistake  per- 


414  Cases  on  Personal.  Property 

forms  labor  upon  the  property  of  another  should  lose  nothing  by 
his  error,  but  should  have  a  claim  upon  the  owner  for  remunera- 
tion. Why  should  one  be  vigilant  and  careful  of  the  rights  of 
others  if  such  were  the  law?  Whether  mistaken  or  not  is  all  the 
same  to  him,  for  in  either  case  he  has  employment  and  receives  his 
remuneration;  while  the  inconveniences,  if  any,  are  left  to  rest 
with  the  innocent  owner.  Such  a  doctrine  offers  a  premium  to 
heedlessness  and  blunders,  and  a  temptation  by  false  evidence  to 
give  an  intentional  trespass  the  appearance  of  an  innocent  mistake. 
A  case  could  seldom  arise  in  which  the  claim  to  compensation 
could  be  more  f avorabl}^  presented  by  the  facts  than  it  is  in  this ; 
since  it  is  highly  probable  that  the  defendant  would  suffer  neither 
hardship  nor  inconvenience  if  compelled  to  pay  the  plaintiffs  for 
their  labor.  But  a  general  principle  is  to  be  tested,  not  by  its 
operation  in  an  individual  case,  but  by  its  general  workings.  If 
a  mechanic  employed  to  alter  over  one  man's  dwelling  house,  shall 
by  mistake  go  to  another  which  happens  to  be  unoccupied,  and 
before  his  mistake  is  discovered,  at  a  large  expenditure  of  labor 
shall  thoroughly  overhaul  and  change  it,  will  it  be  said  that  the 
owner,  who  did  not  desire  his  house  disturbed,  must  either  abandon 
it  altogether,  or  if  he  takes  possession,  must  pay  for  labor  expended 
upon  it  which  he  neither  contracted  for,  desired  nor  consented  to? 
And  if  so,  what  bounds  can  be  prescribed  to  which  the  application 
of  this  doctrine  can  be  limited  ?  The  man  who  by  mistake  carries 
off  the  property  of  another  will  next  be  demanding  payment  for 
the  transportation ;  and  the  only  person  reasonably  secure  against 
demands  he  has  never  assented  to  create,  will  be  the  person  who, 
possessing  nothing,  is  thereby  protected  against  any  thing  being 
accidentally  improved  by  another  at  his  cost  and  to  his  ruin. 

The  judgment  of  the  circuit  court  must  be  reversed,  with  costs, 
and  a  new  trial  ordered. 

The  other  Justices  concurred.^ 


Enhanced  Value. 

WETHERBEE  v.  GREEN. 

22  Mich.  311,  7  Am.  kep.  653.    1871. 

The  facts  are  stated  in  the  opinion. 

Cooleiy,  J. — The  defendants  in  error  replevied  of  Wetherbee  a 
quantity  of  hoops,  which  he  had  made  from  timber  cut  upon  their 
8  See  Childs'  Personal  Property,  §281. 


Transfer  of  Property  by  Operation  of  Law  415 

land.  Wetlierbee  defended  the  replevin  suit  on  two  grounds.  First, 
he  claimed  to  have  cut  the  timber  under  a  license  from  one  Sum- 
ner, who  was  formerly  tenant  in  common  of  the  land  with  Green, 
and  had  been  authorized  by  Green  to  give  such  license.  Before  the 
license  was  given,  however,  Sumner  had  sold  his  interest  in  the 
land  to  Camp  and  Brooks,  the  co-plaintiffs  with  Green,  and  had 
conveyed  the  same  by  warranty  deed ;  but  Wetherbee  claimed  and 
offered  to  show  by  parol  evidence,  that  the  sole  purpose  of  this 
conveyance  was  to  secure  a  pre-existing  debt  from  Sumner  to  Camp 
and  Brooks,  and  that  consequently  it  amounted  to  a  mortgage 
only,  leaving  in  Sumner,  under  our  statute,  the  usual  right  of  a 
mortgagor  to  occupy  and  control  the  land  until  foreclosure.    *    *    * 

But  if  the  court  should  be  against  him  on  this  branch  of  the 
case,  Wetherbee  claimed  further  that  replevin  could  not  be  main- 
tained for  the  hoops,  because  he  had  cut  the  timber  in  good  faith, 
relying  upon  a  permission  which  he  supposed  proceeded  from  the 
parties  having  lawful  right  to  give  it,  and  had,  by  the  expenditure 
of  his  labor  and  money,  converted  the  trees  into  chattels  immensely 
more  valuable  than  they  were  as  they  stood  in  the  forest,  and 
thereby  he  had  made  such  chattels  his  own.  And  he  offered  to 
show  that  the  standing  timber  was  worth  twenty-five  dollars  only, 
while  the  hoops  replevied  were  shown  by  the  evidence  to  be  worth 
near  seven  hundred  dollars;  also,  that  at  the  time  of  obtaining 
the  license  from  Sumner  he  had  no  knowledge  of  the  sale  of  Sum- 
ner's interest,  but,  on  the  other  hand,  had  obtained  an  abstract 
of  the  title  to  the  premises  from  a  firm  of  land  agents  at  the 
county  seat,  who  kept  an  abstract  book  of  titles  to  land  in  that 
county,  which  abstract  showed  the  title  to  be  in  Green  and  Sumner, 
and  that  he  then  purchased  the  timber,  relying  upon  the  abstract, 
and  upon  Sumner's  statement  that  he  was  authorized  by  Green  to 
make  the  sale.  The  evidence  offered  to  establish  these  facts  was 
rejected  by  the  court,  and  the  plaintiffs  obtained  judgment. 

The  principal  question  which,  from  this  statement,  appears  to 
be  presented  by  the  record,  may  be  stated  thus :  Has  a  party  who 
has  taken  the  property  of  another  in  good  faith,  and  in  reliance 
upon  a  supposed  right,  without  intention  to  commit  wrong,  and 
by  the  expenditure  of  his  money  or  labor,  worked  upon  it  so  great 
a  transformation  as  that  which  this  timber  underwent  in  being  trans- 
formed from  standing  trees  into  hoops,  acquired  such  a  property 
therein  that  it  cannot  be  folloAved  into  his  hands  and  reclaimed 
by  the  owner  of  the  trees  in  its  improved  condition  ? 

The  objections  to  allowing  the  owner  of  the  trees  to  reclaim  the 


416  Cases  on  Personal  Property 

property  under  such  circumstances  are,  that  it  visits  the  involuntary 
wrong-doer  too  severely  for  his  unintentional  trespass,  and  at  the 
same  time  compensates  the  owner  beyond  all  reason  for  the  injury 
he  has  sustained.  In  the  redress  of  private  injuries  the  law  aims 
not  so  much  to  punish  the  wrongdoer  as  to  compensate  the  sufferer 
for  his  injuries;  and  the  cases  in  which  it  goes  farther  and  inflicts 
punitory  or  vindictive  penalties  are  those  in  which  the  wrong- 
doer has  committed  the  wrong  recklessly,  willfully,  or  maliciously, 
and  under  circumstances  presenting  elements  of  aggravation. 
Where  vicious  motive  or  reckless  disregard  of  right  are  not  involved, 
to  inflict  upon  a  person  who  has  taken  the  property  of  another, 
a  penalty  equal  to  twenty  or  thirty  times  its  value,  and  to  com- 
pensate the  owner  in  a  proportion  equally  enormous,  is  so  opposed 
to  all  legal  idea  of  justice  and  right  and  to  the  rules  which  regu- 
late the  recovery  of  damages  generally,  that  if  permitted  by  the 
law  at  all,  it  must  stand  out  as  an  anomaly  and  must  rest  upon 
peculiar  reasons. 

As  a  general  rule,  one  whose  property  has  been  appropriated  by 
another  without  authority  has  a  right  to  follow  it  and  recover 
the  possession  from  any  one  who  may  have  received  it;  and  if,  in 
the  meantime,  it  has  been  increased  in  value  by  the  addition  of 
labor  or  money,  the  owner  may,  nevertheless,  reclaim  it,  provided 
there  has  been  no  destruction  of  substantial  identity.  So  far  the 
authorities  are  agreed.  A  man  cannot  generally  be  deprived  of  his 
property  except  by  his  own  voluntary  act  or  by  operation  of  law ;  and 
if  unauthorized  parties  have  bestowed  expense  or  labor  upon  it, 
that  fact  cannot  constitute  a  bar  to  his  reclaiming  it,  so  long  as 
identification  is  not  impracticable.  But  there  must,  nevertheless, 
in  reason  be  some  limit  to  the  right  to  follow  and  reclaim  materials 
which  have  undergone  a  process  of  manufacture.  Mr.  Justice  Black- 
stone  lays  down  the  rule  very  broadly,  that  if  a  thing  is  changed 
into  a  different  species,  as  by  making  wine  out  of  another's  grapes, 
oil  from  his  olives,  or  bread  from  his  wheat,  the  product  belongs 
to  the  new  operator,  who  is  only  to  make  satisfaction  to  the  former 
proprietor  for  the  materials  converted:  2  Bl.  Com.  404.  We  do 
not  understand  this  to  be  disputed  as  a  general  proposition,  though 
there  are  some  authorities  which  hold  that,  in  the  case  of  a  willful 
appropriation,  no  extent  of  conversion  can  give  to  the  willful  tres- 
passer a  title  to  the  property  so  long  as  the  original  materials  can 
be  traced  in  the  improved  article.  The  distinction  thus  made 
between  the  case  of  an  appropriation  in  good  faith  and  one  based 
on  intentional  wrong,  appears  to  have  come  from  the  civil  law. 


Transfer  of  Property  by  Operation  of  Law  417 

which  would  not  suffer  a  party  to  acquire  title  by  accession,  founded 
on  his  own  act,  unless  he  had  taken  the  materials  in  ignorance 
of  the  true  owner,  and  given  them  a  form  which  precluded  their 
beinr;  restored  to  their  original  condition:  2  Kent  363.  While 
many  cases  have  followed  the  rule  as  broadly  stated  by  Black- 
stone,  others  have  adopted  the  severe  rule  of  the  civil  law  where 
the  conversion  was  in  willful  disregard  of  right.  The  New  York 
cases  of  Betts  v.  Lee,  5  Johns.  348 ;  Curtis  v.  Groat,  6  Johns.  168 
and  Chandler  v.  Edson,  9  Johns.  362,  were  all  cases  where  the 
willful  trespasser  was  held  to  have  acquired  no  property  by  a  very 
radical  conversion,  and  in  Silsbury  v.  McCoon,  3  N.  Y.  378,  385, 
the  whole  subject  is  very  fully  examined,  and  Kuggles  J.,  in  deliv- 
ering the  opinion  of  the  court,  says  that  the  common  law  and  the 
civil  law  agree  ''that  if  the  chattel  wrongfully  taken  come  into 
the  hands  of  an  innocent  holder  who,  believing  himself  to  be  the 
owner,  converts  the  chattel  into  a  thing  of  different  species,  so  that 

its  identity  is  destroyed,  the  original  owner  cannot  reclaim  it. 

*     *     * 

It  does  not  become  necessary  for  us  to  consider  whether  the  case 
of  Silsbury  v.  McCoon,  3  N.  Y.  378,  which  overruled  the  prior  deci- 
sions of  the  supreme  court  (reported  in  4  Denio  425  and  6  Hill 
332),  has  not  recognized  a  right  in  the  owner  of  the  original  mate- 
rials to  follow  them  under  circumstances  when  it  would  not  be 
permitted  by  the  rule  as  recognized  by  the  authorities  generally. 
That  was  the  case  where  a  willful  trespasser  had  converted  corn 
into  whisky,  and  the  owner  of  the  com  was  held  entitled  to  the 
manufactured  article.  The  rule  as  given  by  Blaekstone  would 
confine  the  owner,  in  such  case,  to  his  remedy  to  recover  damages 
for  the  original  taking.  But  we  are  not  called  upon  in  this  case 
to  express  any  opinion  regarding  the  rule  applicable  in  the  case 
of  a  willful  trespasser,  since  the  authorities  agree  in  holding  that, 
when  the  wrong  had  been  involuntary,  the  owner  of  the  original 
materials  is  precluded,  by  the  civil  law  and  common  law  alike,  from 
following  and  reclaiming  the  property  after  it  has  undergone  a 
transformation  which  converts  it  into  an  article  substantially 
different. 

The  cases  of  confusion  of  goods  are  closely  analogous.  It  has 
always  been  held  that  he  who,  without  fraud,  intentional  wrong, 
or  reckless  disregard  of  the  rights  of  others,  mingled  his  goods  with 
those  of  another  person,  in  such  manner  that  they  could  not  be 
distinguished,  should,  nevertheless,  be  protected  in  his  ownership 
so  far  as  the  circumstances  would  permit.  The  question  of  motive 
C.  P.  P.— 27 


418  Cases  on  Personal  Property 

here  becomes  of  the  highest  importance;  for,  as  Chancellor  Kent 
says,  if  the  commingling  of  property  "was  willfully  made  without 
mutual  consent,  *  *  *  the  common  law  gave  the  entire  property, 
without  any  account,  to  him  whose  property  was  originally  invaded, 
and  its  distinct  character  destroyed:  Popham's  Rep.  38,  PL  2. 
If  A  will  willfully  intermix  his  com  or  hay  with  that  of  B,  or  casts 
his  gold  into  another's  crucible,  so  that  it  becomes  impossible  to 
distinguish  what  belonged  to  A  from  what  belonged  to  B,  the 
whole  belongs  to  B:  Popham's  Rep.,  nh  supra;  *  *  *  Hart  v. 
Ten  Eyck,  2  Johns.  Ch.  62 ;  Gordon  v.  Jenney,  16  Mass.  465 ;  Treat 
V.  Barber,  7  Conn.  280 ;  Barron  v.  Cobleigh,  11  N.  H.  561 ;  Roth  v. 
Wells,  29  N.  Y.  486;  Willard  v.  Rice,  11  Met.  493;  Jenkins  v. 
Steanka,  19  Wis.  128;  Hesseltine  v.  Stockwell,  30  Me.  237.  But 
this  rule  only  applies  to  wrongful  or  fraudulent  intermixtures. 
There  may  be  an  intentional  intermingling,  and  yet  no  wrong 
intended,  as  where  a  man  mixes  two  parcels  together,  supposing 
both  to  be  his  own ;  or,  that  he  was  about  to  mingle  his  with  his 
neighbor's,  by  agreement,  and  mistakes  the  parcel.  In  such  cases, 
which  may  be  deemed  accidental  intermixtures,  it  would  be  unreas- 
onable and  unjust  that  he  should  lose  his  own  or  be  obliged  to  take 
and  pay  for  his  neighbor's,  as  he  would  have  been  under  the  civil 
law:  Morton  J.  in  Ryder  v.  Hathaway,  21  Pick.  305.  In  many 
cases  there  will  be  difficulty  in  determining  precisely  hov/  he  can 
be  protected  with  due  regard  to  the  rights  of  the  other  party ;  hvit 
it  is  clear  that  the  law  will  not  forfeit  his  property  in  consequence 
of  the  accident  or  inadvertence,  unless  a  just  measure  of  redress 
to  the  other  party  renders  it  inevitable :  Story  on  Bailm.,  §  40 ; 
Sedg.  on  Dams,  483. 

The  important  question  on  this  branch  of  the  case  appears  to  us 
to  be,  whether  standing  trees,  when  cut  and  manufactured  into 
hoops,  are  to  be  regarded  as  so  far  changed  in  character  that  their 
identity  can  be  said  to  be  destroyed  within  the  meaning  of  the 
authorities.  And  as  we  enter  upon  a  discussion  of  this  question, 
it  is  evident  at  once  that  it  is  difficult,  if  not  impossible,  to  discover 
any  invariable  and  satisfactory  test  which  can  be  applied  to  all 
the  cases  which  arise  in  such  infinite  variety.  "If  grain  be  taken 
and  made  into  malt,  or  money  taken  and  made  into  a  cup,  or  timber 
taken  and  made  into  a  house,  it  is  held  in  the  old  English  law 
that  the  property  is  .so  altered  as  to  change  the  title:  Bro.  Tit. 
Property,  PI.  23;"  2  Kent  363.  But  cloth  made  into  garments, 
leather  into  shoes,  trees  hewn  or  sawed  into  timber,  and  iron  made 
into  bars,  it  is  said  may  be  reclaimed  by  the  owner  in  their  new 


Transfer  of  Property  by  Operation  of  Law  419 

and  original  shape :  Sedg.  on  Dams,  484 ;  Snyder  v.  Vaux,  2  Rawle 
427;  Betts  v.  Lee,  5  Johns.  348;  Curtis  v.  Groat,  6  Johns.  168; 
Brown  v.  Sax,  7  Cow.  95 ;  Silsbury  v.  McCoon,  4  Denio  333,  per 
Bronson  J. ;  Ibid.,  6  Hill  426,  per  Nelson  Ch.  J. ;  Ibid.,  3  N.  Y.  386, 
per  Ruggles  J.  Some  of  the  cases  place  the  right  of  the  former 
o-RTier  to  take  the  thing  in  its  altered  condition  upon  the  question 
whether  its  identity  could  be  made  out  by  the  senses:  Year  Book 
5,  H.  7,  f ol.  15,  PI.  6 ;  4  Denio  335,  note.  But  this  is  obviously  a 
very  unsatisfactory  test,  and  in  many  cases  would  wholly  defeat 
the  purpose  which  the  law  has  in  view  in  recognizing  a  change  of 
title  in  any  of  these  cases.  That  purpose  is  not  to  establish  any 
arbitrary  distinctions,  based  upon  mere  physical  reasons,  but  to 
adjust  the  redress  afforded  to  the  one  party  and  the  penalty  inflicted 
upon  the  other,  as  near  as  circumstances  will  permit,  to  the  rules 
of  substantial  justice. 

It  may  often  happen  that  no  difficulty  will  be  experienced  in 
determining  the  identity  of  a  piece  of  timber  which  has  been  taken 
and  built  into  a  house;  but  no  one  disputes  that  the  right  of  the 
original  owner  is  gone  in  such  a  case.  A  particular  piece  of  wood 
might,  perhaps,  be  traced  without  trouble  into  a  church  organ,  or 
other  equally  valuable  article;  but  no  one  would  defend  a  rule  of 
law  which,  because  the  identity  could  be  determined  by  the  senses, 
would  permit  the  owner  of  the  wood  to  appropriate  a  musical  instru- 
ment, a  hundred  or  a  thousand  times  the  value  of  his  original  mate- 
rials, when  the  party  who,  under  like  circumstances,  has  doubled 
the  value  of  another  man's  corn  by  converting  it  into  malt,  is  per- 
mitted to  retain  it,  and  held  liable  for  the  original  value  only. 
Such  distinctions  in  the  law  would  be  without  reason,  and  could 
not  be  tolerated.  When  the  right  to  the  improved  article  is  the 
point  in  issue,  the  question,  how  much  the  property  or  labor  of 
each  has  contributed  to  make  it  what  it  is,  must  always  be  one  of 
first  importance.  The  owner  of  a  beam  built  into  the  house  of 
another  loses  his  property  in  it,  because  the  beam  is  insignificant  in 
value  or  importance  as  compared  to  that  to  which  it  has  become 
attached,  and  the  musical  instrument  belongs  to  the  maker  rather 
than  to  the  man  wh6se  timber  was  used  in  making  it — not  because 
the  timber  cannot  be  identified,  but  because,  in  bringing  it  to  its 
present  condition  the  value  of  the  labor  has  swallowed  up  and 
rendered  insignificant  the  value  of  the  original  materials.  The 
labor,  in  the  case  of  the  musical  instrument,  is  just  as  much  the 
principal  thing  as  the  house  is  in  the  other  case  instanced;  the 
timber  appropriated  is  in  each  case  comparatively  unimportant. 


420  Cases  on  Personal  Property 

No  test  which  satisfies  the  reason  of  the  law  can  be  applied  in  the 
adjustment  of  questions  of  title  to  chattels  by  accession,  unless  it 
keeps  in  view  the  circumstance  of  relative  values.  When  we  bear 
in  mind  the  fact  that  what  the  law  aims  at  is  the  accomplishment 
of  substantial  equity,  we  shall  readily  perceive  that  the  fact  of  the 
value  of  the  materials  having  been  increased  a  hundred-fold,  is  of 
more  importance  in  the  adjustment  than  any  chemical  change  or 
mechanical  transformation,  which,  however  radical,  neither  is  expen- 
sive to  the  party  making  it,  nor  adds  materially  to  the  value.  There 
may  be  complete  changes  with  so  little  improvement  in  value,  that 
there  could  be  no  hardship  in  giving  the  owner  of  the  original 
materials  the  improved  article;  but  in  the  present  case,  where  the 
defendant's  labor — if  he  shall  succeed  in  sustaining  his  offer  of 
testimony — will  appear  to  have  given  the  timber  in  its  present 
condition  nearly  all  its  value,  all  the  grounds  of  equity  exist  which 
influence  the  courts  in  recognizing  a  change  of  title  under  any  cir- 
cumstances. 

We  are  of  opinion  that  the  court  erred  in  rejecting  the  testimony 
offered.  The  defendant,  we  think,  had  a  right  to  show  that  he 
had  manufactured  the  hoops  in  good  faith,  and  in  the  belief  that 
he  had  the  proper  authority  to  do  so;  and  if  he  should  succeed 
in  making  that  showing,  he  was  entitled  to  have  the  jury  instructed 
that  the  title  to  the  timber  was  changed  by  a  substantial  change 
of  identity,  and  that  the  remedy  of  the  plaintiff  was  an  action  to 
recover  damages  for  the  unintentional  trespass. 

This  view  will  dispose  of  the  ease  upon  the  present  record.    *    *    * 

For  the  reasons  given  the  judgment  must  be  reversed,  with  costs, 
and  a  new  trial  ordered. 

The  other  justices  concurred.'* 


Measure  op  Damages. 

WINCHESTER  v.  CRAIG  et  al. 

33  Mich.  205.     1876. 

The  facts  are  stated  in  the  opinion. 

Marston,  J. — Winchester  brought  an  action  of  trover  to  recover 
damages  for  the  conversion  by  defendants  of  a  quantity  of  pine 
4  See  Childs '  Personal  Property,  §  281. 


Transfer  of  Property  by  Operation  of  Law  421 

sawlogs.  It  appeared  on  the  trial  that  defendants  were  the  owners 
of  the  north  half  of  section  thirty-three,  township  twenty-one  north, 
range  six  east,  in  this  state;  that  they  contracted  with  one  Smith 
to  lumber  on  said  land ;  that  by  mistake  Smith  cut  the  logs  in  ques- 
tion upon  the  south  half  of  said  section,  caused  the  same  to  be 
hauled  a  distance  of  about  five  miles  to  the  Au  Sable  river,  thence 
run  to  the  boom  at  the  mouth  of  said  river,  there  rafted  and  towed 
from  thence  to  Toledo  in  the  state  of  Ohio,  where  they  were  sold 
at  twelve  dollars  per  thousand  feet. 

Evidence  was  also  given  tending  to  show  that  the  timber  while 
standing  on  the  land  was  worth  one  dollar  and  fifty  cents  per 
thousand  feet;  that  the  cost  of  cutting  it  was  fifty  cents  per  thou- 
sand; hauling  the  logs  to  the  river,  five  or  six  dollars  per  thou- 
sand ;  and  their  value  in  the  river  eight  dollars  per  thousand ;  that 
the  cost  of  running  them  to  the  boom  was  thirty-seven  and  a  half 
cents  per  thousand ;  boom  charges,  one  dollar  per  thousand ;  rafting 
and  towing  to  Toledo,  two  dollars  per  thousand;  and  their  value 
there,  twelve  to  thirteen  dollars  per  thousand. 

It  also  appeared  that  when  these  logs  were  cut,  the  south  half 
of  said  section  was  owned  by  Eber  B.  Ward,  and  that  he  afterwards, 
and  before  suit  was  brought,  assigned  all  his  claim  and  right  of 
action  for  such  cutting  to  the  plaintiff. 

The  plaintiff  claimed  to  recover  the  price  at  which  the  timber 
was  sold  in  Toledo. 

The  court  charged  the  jury  that  if  they  found  no  willful  wrong 
on  the  part  of  the  defendants,  they  might  award  as  damages  the 
value  of  the  property  where  it  was  taken,  viz, :  one  dollar  and  fifty 
cents  per  thousand,  together  with  the  profits  which  might  have  been 
derived  from  its  value  in  the  ordinary  market,  or  that  they  might 
take  the  market  value  at  Toledo,  deduct  precisely  the  sum  defend- 
ants expended  in  bringing  it  to  that  market  and  putting  it  in  con- 
dition for  sale,  and  award  the  difference  between  these  two  sums, 
with  interest,  in  either  case,  from  the  time  the  conversion  took 
place;  and  refused  to  charge  that  the  plaintiff  could  recover  as  dam- 
ages the  price  for  which  the  logs  were  sold  in  Toledo. 

The  finding  of  the  jury,  as  appears  from  the  printed  record,  was 
as  follows:  ''The  defendants  cut  the  timber  on  the  land  of  Ward 
by  mistake ;  the  quantity  cut  was  one  million  ninety-three  thousand 
seven  hundred  and  eighty-six  feet ;  the  value  on  the  land  after  it 
was  cut  was  two  dollars  per  thousand  feet;  the  value  at  Toledo, 
and  for  which  the  defendants  sold  the  timber,  was  twelve  dollars 
per  thousand ;  the  expenses  of  the  defendants  on  the  timber  in  cut- 


422  Cases  on  Personal  Property 

ting  and  removing  the  same  to  Toledo,  nine  dollars  and  thirty-seven 
cents  per  thousand;"  and  they  assessed  the  plaintiff's  damages  at 
the  sum  of  three  thousand  six  hundred  and  thirty-one  dollars  and 
forty  cents. 

It  will  thus  be  seen  that  the  only  question  raised  by  this  record 
is,  where  parties  by  mistake  cut  timber  upon  the  lands  of  another, 
and  at  their  own  expense  transport  it  to  market  and  sell  it,  whether 
the  plaintiff  in  an  action  of  trover  can  recover  as  damages  the  mar- 
ket value  at  the  time  and  place  where  it  was  sold. 

An  examination  of  the  authorities  bearing  upon  this  question 
shows  that  they  are  not  in  harmony,  and  that  the  courts  have  not 
always  agreed  as  to  the  proper  measure  of  damages  in  this  class 
of  cases.  Some  courts  have  held,  in  cases  like  the  present,  that  the 
plaintiff  could  recover  as  damages  the  value  of  the  logs  at  any 
place  to  wliich  they  were  taken  and  sold  or  converted,  while  others 
have  held  such  a  measure  of  damages  applicable  only  in  cases 
where  there  was  fraud,  violence  or  willful  negligence  or  wrong,  and 
that  where  none  of  these  elements  appeared,  but  on  the  contrary 
the  defendants  had  acted  in  entire  good  faith,  and  had  by  their 
labor  and  skill  materially  enhanced  the  value  of  the  property  con- 
verted, the  plaintiff  could  not  recover  such  enhanced  value.  In 
this  last  class  of  cases  the  decisions  are  not  uniform  as  to  whether 
the  value  of  the  property  when  first  severed  from  the  realty,  as  in 
cases  of  timber  or  coal  where  this  question  has  arisen,  or  the  value 
in  its  original  condition,  with  such  other  damage  to  the  realty  as 
the  injury  may  have  caused,  would  constitute  the  proper  measure. 

It  is  apparent  upon  examination  that  there  is  no  fixed  definite 
measure  of  damages  applicable  in  all  cases  of  conversion  of  prop- 
erty ;  and  while  the  general  rule  undoubtedly  is,  in  ordinary  cases, 
that  the  full  value  of  the  property  at  the  time  and  place  of  its 
conversion,  together  with  interest  thereon,  is  the  correct  measure 
of  damages  in  actions  of  trover,  yet,  as  was  said  in  Northrup  v. 
McGill,  27  Mich.  238,  "this  rulq  yields,  when  the  facts  require  it, 
to  the  principle  on  which  the  rule  itself  rests,  namely:  that  the 
recovery  in  trover  ought  to  be  commensurate,  and  only  commen- 
surate with  the  injury,  whether  that  injury  be  greater  or  less  in 
extent  than  the  full  value  of  the  property  and  interest."    *    *     * 

It  is  somewhat  difficult  to  conceive  why,  upon  principle,  this 
rule  should  not  be  applied  in  its  fullest  extent  to  cases  like  the 
present.  The  cases,  it  is  believed,  all  agree  that  punitoiy  or  exem- 
plary damages  are  never  given  or  allowed  in  cases  where  the  defend- 
ant has  acted  in  entire  good  faith,  under  an  honest  belief  that  he 


Transfer  of  Property  by  Operation  of  Law  423 

had  a  legal  right  to  do  the  act  complained  of,  although,  even  in  such 
cases,  he  "would  be  conclusively  held  to  have  contemplated,  and 
the  plaintiff  would  be  permitted  to  recover,  all  the  damages  which 
legitimately  followed  from  his  illegal  act,  whether  in  fact  he  actually 
contemplated  that  such  damages  would  follow  or  not.  Such  dam- 
ages, however,  would,  in  no  just  sense  of  the  term,  be  held  as  puni- 
tory or  exemplary;  they  would  be  but  the  actual  damages  which 
the  plaintiff  had  suffered  from  the  wrongful  act  of  the  defendant. 
Such  then  being  the  general  rules  applicable  in  cases  even  of  active, 
aggressive  wrongs,  what  is  there  in  this  case  to  make  it  an  exception  ? 

It  does  not  require  any  argument,  and  I  shall  attempt  none,  to 
prove  that  the  pecuniary  injury  sustained  by  the  plaintiff,  from 
the  trespass  complained  of,  falls  far  short  of  the  value  of  these  logs 
at  Toledo;  and  that  to  award  the  value  at  the  latter  place  as  the 
measure  of  damages  would  be  much  more  than  compensation,  and 
would,  although  under  a  different  name,  be  but  awarding  exemplary 
damages,  and  that,  too,  in  a  case  where  upon  principle  the  defend- 
ants had  been  guilty  of  no  act  calling  for  such  a  punishment. 

It  is  also  clear  beyond  question  that  had  the  plaintiff  commenced 
any  other  form  of  action  to  recover  damages  for  the  injury  which 
he  sustained,  he  could  not  in  such  action  recover  the  market  value 
of  the  logs  at  Toledo.  It  is  very  evident,  therefore,  that  the  right 
of  the  plaintiff'  to  recover  the  value  at  Toledo  depends  entirely 
upon  the  particular  form  of  action  adopted  in  this  case;  as  in  any 
other,  where  the  defendants  had  acted  honestly,  he  could  only 
recover  the  amount  of  the  actual  injury  sustained. 

Passing  for  the  present  the  adjudged  cases,  I  can  see  no  good 
reason  or  principle  why  the  measure  of  damages  in  actions  of  trover 
should  be  different  from  that  in  other  actions  sounding  in  tort ;  and 
to  hold  that  there  is  such  a  distinction  is  to  permit  the  form  of  the 
action,  rather  than  the  actual  injury  complained  of  to  fix  the 
damages.    *    *    * 

*  *  *  The  law  rather  aims,  so  far  asi  possible,  to  protect  the 
plaintiff,  but  at  the  same  time  it  has  a  due  regard  to  the  rights  of 
the  defendants,  and  it  will  not  inflict  an  undue  or  unjust  punish- 
ment upon  them,  in  cases  where  they  are  not  deserving  it,  as  a 
means  of  righting  an  injury,  especially  where  it  would  much  more 
than  compensate  the  owner  for  the  injury  which  he  sustained. 

In  this  case  each  has  an  interest  in  the  logs;  the  plaintiff  as 
assignee  of  the  original  owner;  the  defendant  by,  in  good  faith, 
largely  increasing  their  value.  Each  should  be  protected  in  his 
rights,  and  thus  as  nearly  as  possible  substantial  justice  be  done. 


424  Cases  on  Personal  Property 

To  allow  the  plaintiff  to  recover  what  he  here  seeks  would  be  to  break 
down  all  distinctions  between  the  willful  and  involuntary  tres- 
passer; a  distinction  which  is  based  upon  sound  legal  principles, 
and  which  is  applied  in  all  other  forms  of  action. 

What  we  have  here  said  must  not  be  considered  as  having  any 
application  in  cases  where  the  trespass  or  wrong  complained  of  was 
willful  or  negligent.  We  are  not  yet  prepared  to  say  that  the  willful 
trespasser  can  derive  any  advantage  whatever  from  his  own  wrong. 
On  the  contrary,  there  is  sound  reason  for  holding  that  the  owner 
in  such  cases  may  reclaim  his  property  wherever  and  in  whatever 
shape  he  may  find  it. 

The  court  under  one  branch  of  the  charge  instructed  the  jury 
to  allow  the  market  value  at  Detroit,  or  Toledo,  less  the  sum  of 
money  which  defendants  expended  in  bringing  it  to  market.  This, 
we  think,  was  as  favorable  as  the  plaintiff  had  any  right  in  this 
case  to  expect.  This  was  allowing  the  plaintiff  more  than  the  value 
of  the  timber  when  it  was  first  severed  from  the  realty.  It  did  not 
permit  the  defendants  to  recover  any  profit  upon  what  they  had 
done,  but  protected  them  to  the  extent  of  the  advances  they  had 
made;  and  this,  we  think,  was  correct. 

There  might,  hoM^ever,  be  cases  where  this  rule  would  not  apply, 
where  the  market  value  did  not  cover  the  cost  of  cutting  and  taking 
it  to  market,  and  cases  where  it  was  not  sold.  In  such  cases  the 
plaintiff  would  be  entitled  to  recover  the  value  when  the  property 
was  first  severed  from  the  realty  (Greeley  v.  Stilson,  27  Mich.  154), 
and  was  thus  in  a  shape  where  it  could  be  converted,  together  with 
any  profits  which  might  be  derived  from  its  value  in  the  ordinary 
market,  with  interest  thereon.  If  any  special  damage  is  claimed 
beyond  this,  either  to  the  inheritance  or  otherwise,  it  must  be 
sought  in  some  other  and  more  appropriate  form  of  action. 

We  think  these  rules,  when  applied  by  careful  and  intelligent 
jurors,  will  sufficiently  protect  all  parties,  and  will  afford  no  encour- 
agement to  trespassers. 

Judgment  affirmed  with  costs.^ 

5  See  Childs'  Personal  Property,  §§  282,  283. 

Measure  of  damages.  See  Sligo  Furnace  Co.  v.  Hobart-Lee  Tie  Co.,  153 
Mo.  App.  422,  134  S.  W.  585;  Gaskins  v.  Davis,  115  N.  Car.  85,  20  S.  E.  188, 
26  Am.  Rep.  525,  25  L.  E.  A.  813;  Wing  v.  Milliken,  91  Me.  387,  40  Atl.  138. 


Transfer  of  Property  by  Operation  of  Law  425 

Purchaser  from  Wilful  Trespasser. 

Measure  of  Damages. 
THE  BOLLES  WOODEN  WARE  CO.  v.  UNITED  STATES. 

106  U.  S.  432,  27  L.  Ed.  230.    1882. 
The  facts  are  stated  in  the  opinion. 
j\Ir.  Justice  ]\Iiller  delivered  the  opinion  of  the  court : 

This  is  a  writ  of  error  to  the  Circuit  Court  for  the  Eastern  Dis- 
trict of  Wisconsin,  founded  on  a  certificate  of  division  of  opinion 
between  the  Judges  holding  that  court. 

The  facts,  as  certified,  out  of  which  this  difference  of  opinion 
arose,  appear  in  an  action  in  the  nature  of  trover,  brought  by  the 
United  States  for  the  value  of  two  hundred  and  forty-two  cords 
of  ash  timber,  or  wood  suitable  for  manufacturing  purposes,  cut 
and  removed  from  that  part  of  the  public  lands  known  as  the 
reservation  of  the  Oneida  Tribe  of  Indians,  in  the  State  of  Wis- 
consin. The  timber  was  knowingly  and  wrongfully  taken  from 
the  land  by  Indians,  and  carried  by  them  some  distance  to  the  Town 
of  Depere,  and  there  sold  to  the  defendant,  which  was  not  charge- 
able with  any  intentional  wrong  or  misconduct  or  bad  faith  in  the 
purchase. 

The  timber  on  the  ground,  after  it  was  felled,  was  worth  twenty- 
five  cents  per  cord,  or  $60.71  for  the  whole  and,  at  the  Town  of 
Depere,  where  defendant  bought  and  received  it,  $3.50  per  cord, 
or  $8.50  for  the  whole  quantity.  The  question  on  which  the  Judges 
divided  was,  whether  the  liability  of  the  defendant  should  be  meas- 
ured by  the  first  or  the  last  of  these  valuations. 

It  was  the  opinion  of  the  Circuit  Judge  that  the  latter  was  the 
proper  rule  of  damages,  and  judgment  was  rendered  against  the 
defendant  for  that  sum. 

We  cannot  follow  counsel  for  the  plaintiff  in  error  through  the 
examination  of  all  the  cases,  both  in  England  and  this  country, 
which  his  commendable  research  has  enabled  him  to  place  upon  the 
brief.  In  the  English  courts  the  decisions  have  in  the  main  grown 
out  of  coal  taken  from  the  mine,  and  in  such  cases  the  principle 
seems  to  be  established  in  those  courts,  that  when  suit  is  brought 
for  the  value  of  the  coal  so  taken,  and  it  has  been  the  result  of  an 


426  Cases  on  Personal  Property 

honest  mistake  as  to  the  true  ownership  of  the  mine,  and  the  taking 
was  not  a  willful  trespass,  the  rule  of  damages  is  the  value  of  the 
coal  as  it  was  in  the  mine  before  it  was  disturbed,  and  not  its  value 
when  dug  out  and  delivered  at  the  mouth  of  the  mine.    *    *    * 

The  doctrine  of  the  English  courts  on  this  subject  is  probably 
as  well  stated  by  Lord  Hatherly  in  the  House  of  Lords,  in  the  case 
of  Livington  v.  Rawyards  Coal  Co.,  L.  R.,  5  App.  Cas.  33,  as  any- 
where else.  He  said:  ''There  is  no  doubt  that  if  a  man  furtively, 
and  in  bad  faith,  robs  his  neighbor  of  his  property,  and  because 
it  is  underground  is  probably  for  some  little  time  not  detected,  the 
court  of  equity  in  this  country  will  struggle,  or,  I  would  rather  say, 
will  assert  its  authority  to  punish  the  fraud  by  fixing  the  person 
with  the  value  of  the  whole  of  the  property  which  he  has  so  fur- 
tively taken,  and  making  him  no  allowance  in  respect  of  what  he 
has  so  done,  as  would  have  been  justly  made  to  him  if  the  parties 
had  been  working  by  agreement."  But  "When  once  we  arrive  at 
the  fact  that  an  inadvertence  has  been  the  cause  of  the  misfortune, 
then  the  simple  course  is  to  make  every  just  allowance  for  outlay 
on  the  part  of  the  person  who  has  so  acquired  the  property,  and  to 
give  back  to  the  owner,  so  far  as  is  possible  under  the  circumstances 
of  the  case,  the  full  value  of  that  which  cannot  be  restored  to  him 
in  specie." 

There  seems  to  us  to  be  no  doubt  that  in  the  case  of  a  willful 
trespass,  the  rule  as  stated  above  is  the  law  of  damages,  both  in 
England  and  in  this  country,  though  in  some  of  the  state  courts 
the  milder  rule  has  been  applied  even  to  this  class  of  cases.  Such 
are  some  that  are  cited  from  Wisconsin.  Single  v.  Schneider,  24 
Wis.  299 ;  Weymouth  v.  R.  R.  Co.,  17  Wis.  550. 

On  the  other  hand,  the  weight  of  authority,  in  this  country  as 
well  as  in  England,  favors  the  doctrine  that,  where  the  trespass 
is  the  result  of  inadvertence  or  mistake,  and  the  wrong  was  not 
intentional,  the  value  of  the  property  when  first  taken  must  gov- 
ern, or  if  the  conversion  sued  for  was  after  value  had  been  added 
to  it  by  the  work  of  the  defendant,  he  should  be  credited  with  this 
addition. 

Winchester  v.  Craig,  33  Mich.  205,  contains  a  full  examination 
of  the  authorities  on  the  point.  Heard  v.  James,  49  Miss.  236; 
Baker  v,  Wheeler,  8  Wend.  505 ;  Baldwin  v.  Porter,  12  Conn.  484. 

While  these  principles  are  sufficient  to  enable  us  to  fix  a  measure 
of  damages  in  both  classes  of  torts  where  the  original  trespasser 
is  defendant,  there  remains  a  third  class  where  a  purchaser  from 
him  is  sued,  as  in  this  case,  for  the  conversion  of  the  property  to 


Transfer  of  Property  by  Operation  of  Law  427 

his  own  use.  In  such  case,  if  the  first  taker  of  the  property  were 
guilty  of  no  willful  wrong,  the  rule  can  in  no  case  be  more  stringent 
against  the  defendant  who  purchased  of  him  than  against  his 
vendor. 

But  the  case  before  us  is  one  where,  by  reason  of  the  willful 
wrong  of  the  party  who  committed  the  trespass,  he  was  liable,  under 
the  rule  we  have  supposed  to  be  established,  for  the  value  of  the  tim- 
ber at  Depere  the  moment  before  he  sold  it ;  and  the  question  to  be 
decided  is,  whether  the  defendant  who  purchased  it  then,  with  no 
notice  that  the  property  belonged  to  the  United  States  and  with 
no  intention  to  do  wrong,  must  respond  by  the  same  rule  of  dam- 
ages as  his  vendor  should  if  he  had  been  sued. 

It  seems  to  us  that  he  must.  The  timber,  at  all  stages  of  the 
conversion,  was  the  property  of  plaintiff.  Its  purchase  by  defend- 
ant did  not  devest  the  title  nor  the  right  of  possession.  The  recov- 
ery of  any  sum  whatever  is  based  upon  that  proposition.  This 
right,  at  the  moment  preceding  the  purchase  by  defendant  at 
Depere,  was  perfect,  with  no  right  in  anyone  to  set  up  a  claim  for 
work  and  labor  bestowed  on  it  by  the  wrong-doer.  It  is  also  plain 
that  by  purchase  from  the  wrong-doer  defendant  did  not  acquire 
any  better  title  to  the  property  than  his  vendor  had.  It  is  not  a 
case  where  an  innocent  purchaser  can  defend  himself  under  that 
plea.  If  it  were,  he  would  be  liable  to  no  damages  at  all,  and  no 
recovery  could  be  had.  On  the  contrary,  it  is  a  case  to  which  the 
doctrine  of  ccuveat  emptor  applies,  and  hence  the  right  of  recovery 
in  plaintiff. 

On  what  ground  then  can  it  be  maintained  that  the  right  to 
recover  against  him  should  not  be  just  what  it  was  against  his 
vendor  the  moment  before  he  interfered  and  acquired  possession? 
If  the  case  were  one  which  concerned  additional  value  placed  upon 
the  property  by  the  work  or  labor  of  the  defendant  after  he  had 
purchased,  the  same  rule  might  be  applied  as  in  case  of  the  inad- 
vertent trespasser. 

But  here  he  has  added  nothing  to  its  value.  He  acquired  pos- 
session of  property  of  the  United  States  at  Depere,  which,  at  that 
place  and  in  its  then  condition,  is  worth  $850,  and  he  wants  to 
satisfy  the  claim  of  the  Government  by  the  payment  of  $60.  He 
founds  his  right  to  do  this,  not  on  the  ground  that  anything  he  has 
added  to  the  property  has  increased  its  value  by  the  amount  of 
the  difference  between  these  two  sums,  but  on  the  proposition  that 
in  purchasing  the  property,  he  purchased  of  the  wrong-doer  a  right 
to  deduct  what  the  labor  of  the  latter  had  added  to  its  value. 


428  Cases  on  Personal  Property 

If,  as  in  the  case  of  an  unintentional  trespasser,  such  right  existed, 
of  course  defendant  would  have  bought  it  and  stood  in  his  shoes; 
but,  as  in  the  present  case,  of  an  intentional  trespasser,  who  had 
no  such  right  to  sell,  the  defendant  could  purchase  none. 

Such  is  the  distinction  taken  in  the  Roman  law,  as  stated  in  the 
Institutes  of  Justinian,  Lib.  II.,  Title  I.,  sec.  34.     *     *     * 

The  case  of  Nesbitt  v.  Lumber  Co.,  21  Minn.  491,  is  directly  in 
point  here.  The  Supreme  Court  of  Minnesota  says :  ''The  defend- 
ant claims  that  because  they  (the  logs)  were  enhanced  in  value  by 
the  labor  of  the  original  wrong-doer  in  cutting  them,  and  the  expense 
of  transporting  them  to  Anoka,  the  plaintiff  is  not  entitled  to  recover 
the  enhanced  value,  that  is,  that  he  is  not  entitled  to  recover  the 
full  value  at  the  time  and  place  of  conversion."  That  was  a  case, 
like  this,  M^here  the  defendant  was  the  innocent  purchaser  of  the 
logs  from  the  willful  wrong-doer,  and  where,  as  in  "fchis  case,  'the 
transportation  of  them  to  a  market  was  the  largest  item  in  their 
value  at  the  time  of  conversion  by  defendant ;  but  the  court  over- 
ruled the  proposition  and  affirmed  a  judgment  for  the  value  at 
Anoka,  the  place  of  sale. 

To  establish  any  other  principle  in  such  a  case  as  this,  would 
be  very  disastrous  to  the  interest  of  the  public  in  the  immense 
forest  lands  of  the  Government.  It  has  long  been  a  matter  of 
complaint  that  the  depredations  upon  these  lands  are  rapidly 
destroying  the  finest  forests  in  the  world.  Unlike  the  individual 
owner,  who,  by  fencing  and  vigilant  attention,  can  protect  his 
valuable  trees,  the  Government  has  no  adequate  defense  against 
this  great  evil.  Its  liberality  in  allowing  trees  to  be  cut  on  its 
land  for  mining,  agricultural  and  other  specified  uses,  has  been  used 
to  screen  the  lawless  depredator  who  destroys  and  sells  for  profit. 

To  hold  that  when  the  Government  finds  its  ow^n  property  in 
hands  but  one  remove  from  these  willful  trespassers,  and  asserts 
its  right  to  such  property  by  the  slow  processes  of  the  law,  the 
holder  can  set  up  a  claim  for  the  value  which  has  been  added  to 
the  property  by  the  guilty  party  in  the  act  of  cutting  down  the 
trees  and  removing  the  timber,  is  to  give  encouragement  and  reward 
to  the  wrong-doer,  by  providing  a  safe  market  for  what  he  has 
stolen  and  compensation  for  the  labor  he  has  been  compelled  to 
do,  to  make  his  theft  effectual  and  profitable. 

We  concur  with  the  Circuit  Judge  in  this  case,  mid  the  judgment 

of  the  Circuit  Court  is  affirmed.^ 

6  See  Childs'  Personal  Property,  §  283. 

See  Omaha  &  Grant  Smelting  &  Refining  Co.  at  al.  v.  Tabor  et  al.,  13  Colo.  41, 
21  Pac.  925. 


Transfer  of  Property  by  Operation  of  Law  429 

Confusion. 
Defiintion — Nature  of. 
HESSELTINE  v.  STOCKWELLl. 
30  Me.  237,  50  Am.  Dec.  627.     1849. 
The  facts  are  stated  in  the  opinion. 

Shepley,  C.  J.— This  was  an  action  of  trover  brought  to  recover 
the  value  of  certain  pine  logs. 

The  logs  appear  to  have  composed  a  part  of  a  larger  lot  estimated 
to  contain  more  than  six  hundred  thousand  feet,  which  were  cut 
and  hauled  by  Leander  Preble.  The  case  states  that  there  was 
testimonj^  tending  to  prove  that  Preble  cut  on  his  own  land  about 
six  hundred  thousand  feet  of  pine  lumber,  and  also  cut  on  the  land 
of  the  plaintiff  about  one  hundred  thousand  feet  of  pine  lumber  of 
a  similar  quality,  all  of  which  logs  were  marked  with  the  same 
mark  and  hauled  and  landed  on  the  same  landing  place. 

With  other  instructions  the  jury  were  instructed,  "that  it  did 
not  appear,  that  any  question  of  confusion  of  property  arose  in  the 
action." 

What  will  constitute  a  confusion  of  goods  has  been  the  subject 
of  much  discussion,  and  it  has  become  a  question  of  much  interest 
to  the  owners  of  lands,  upon  which  there  are  timber  trees,  as  well 
as  to  those  persons  interested  in  the  lumbering  business,  whether 
the  doctrine  can  be  applicable  to  the  intermixture  of  logs. 

When  there  has  been  such  an  intermixture  of  goods  owned  by 
different  persons,  that  the  property  of  each  can  no  longer  be  dis- 
tinguished, what  is  denominated  a  confusion  of  goods  has  taken 
place.  And  this  may  take  place  with  respect  to  mill  logs  and  other 
lumber.  But  it  can  do  so  only  upon  proof,  that  the  property  of 
each  can  no  longer  be  distinguished.  That  the  doctrine  might  be 
applicable  to  mill  logs  is  admitted  in  the  case  of  Loomis  v.  Green, 
7  Greenl.  393.  The  case  of  Wingate  v.  Smith,  20  Maine,  287,  has 
been  alluded  to  as  exhibiting:  a  different  doctrine;  but  the  case 
does  not  authorize  such  a  conclusion.  The  instructions  were,  "that 
merely  taking  the  mill  logs  and  fraudulently  mixing  them  with  the 
defendant's  logs  would  not  constitute  confusion  of  goods."  These 
instructions  were,  and  clearly  must  have  been,  approved;  for  an 
additional  element  was  required,  that  the  mixture  .should  have 


430  Cases  on  Personal  Property 

been  of  such  a  character,  that  the  property  of  each  co-uld  no  longer 
be  distinguished.  The  opinion  merely  refers  with  approbation  to 
the  case  of  Ryder  v.  Hathaway,  21  Pick.  298,  and  says,  "the  prin- 
ciples there  stated  would  authorize  the  instructions,  which  were 
given  on  that  point  in  this  case." 

The  common  law  in  opposition  to  the  civil  law  assigns  the  whole 
property,  without  liability  to  account  for  any  part  of  it,  to  the 
innocent  party,  when  there  has  been  a  confusion  of  goods,  except 
in  certain  cases  or  conditions  of  property.  Chancellor  Kent  cor- 
rectly observes,  that  the  rule  is  carried  no  further  than  necessity 
requires.     2  Kent's  Com.  365. 

There  is  therefore  no  forfeiture  of  the  goods  of  one  who  volun- 
tarily and  without  fraud  makes  such  an  admixture.  As  when,  for 
example,  he  supposes  all  the  goods  to  be  his  own,  or  when  he  does 
it  by  mistake. 

And  there  is  no  forfeiture  in  case  of  a  fraudulent  intermixture, 
when  the  goods  intermixed  are  of  equal  value.  This  has  not  been 
sufficiently  noticed,  and  yet  it  is  a  just  ru.le,  and  is  fully  sustained 
by  authority.  Lord  Eldon,  in  the  case  of  Lupton  v.  "White,  15 
Ves.  442,  states  the  law  of  the  old  decided  eases  to  be,  "if  one  man 
mixes  his  corn  or  flour  with  that  of  another  and  they  were  of  equal 
value,  the  latter  must  have  the  given  quantity:  but  if  articles  of 
a  different  value  are  mixed,  producing  a  third  value,  the  aggregate 
of  the  whole,  and  through  the  fault  of  the  person  mixing  them, 
the  other  party  cannot  tell  what  was  the  original  value  of  his 
property,  he  must  have  the  whole."  This  doctrine  is  stated  with 
approbation  by  Kent.  2  Kent's  Com.  -365.  It  is  again  stated  in 
the  case  of  Ryder  v.  Hathaway.  The  opinion  says,  "if  they  were 
of  equal  value,  as  com  or  wood  of  the  same  kind,  the  rule  of  justice 
would  be  obvious.  Let  each  one  take  his  own  given  quantity.  But, 
if  they  were  of  unequal  value,  the  rule  would  be  more  difficult. 

If  no  logs  were  cut  upon  land  owned  by  the  plaintiff,  no  question 
could  have  arisen  of  confusion  of  goods.  The  jury  were  required 
by  the  instructions  to  find  only,  that  none  of  those  taken  by  the 
defendant  were  cut  on  the  plaintiff's  land.  They  were  not  required 
to  find  that  no  logs,  composing  the  whole  lot  of  six  or  seven  hundred 
thousand  feet,  were  cut  on  the  plaintiff's  land. 

If  Preble  wrongfully  cut  any  logs  on  land  OT\Tied  by  the  plaintiff, 
and  mixed  them  with  logs  cut  on  his  own  land,  so  that  they  could 
not  be  distinguished,  a  question  respecting  confusion  of  goods 
might  properly  have  arisen.  The  admixture  might  have  been 
of  such  a  character  that  the  whole  lot  of  logs,  including  those  in 


Transfer  op  Property  by  Operation  of  Law  431 

the  possession  of  the  defendant,  might  have  become  the  property 
of  the  plaintiff.  Or  it  might  have  been  of  such  a  character,  the 
logs  being  of  equal  value,  that  the  plaintiff  would  have  been 
entitled  to  recover  from  any  one  in  possession  of  those  logs  or  of 
a  part  of  them,  such  proportion  of  them  as  the  logs  cut  upon  his 
land  bore  to  the  whole  number. 

While  the  facts  reported  might  not  necessarily  prove  a  confu- 
sion of  goods,  if  part  of  the  whole  lot  of  logs  were  cut  upon  land 
owned  by  the  plaintiff,  they  might  have  been  sufficient  to  raise 
that  question,  and  to  present  it  for  the  consideration  of  the  jury. 

The  instructions,  therefore,  when  considered  together,  requiring 
the  plaintiff  to  satisfy  the  jury  that  some  of  that  particular  por- 
tion of  the  whole  lot  of  logs  which  the  defendant  had  in  his  pos- 
session were  cut  upon  land  owned  by  the  plaintiff,  and  that  no 
question  of  confusion  of  property  appeared  to  arise,  were  too  restric- 
tive. They  may  have  deprived  the  plaintiff  of  the  right  to  recover 
upon  proof  that  some  of  the  logs  composing  the  whole  lot  had 
been  cut  upon  his  land  and  so  mixed  with  logs  cut  on  land  owned 
by  Preble  that  they  could  not  be  distinguished. 

Exceptions  sustained,  verdict  set  aside,  and  new  trial  granted  J 


Indistinguishable  Intermingling. 
BRYANT  V.  WARE. 
30  Me.  295.     1849. 
The  facts  are  stated  in  the  opinion. 

Howard,  J. — This  was  an  action  of  trespass  de  honis  asportatis, 
for  a  quantity  of  cedar  railroad  sleepers,  juniper  knees,  shingles 
and  juniper  timber.  There  was  evidence,  as  stated  in  the  excep- 
tions, tending  to  show  that  the  lumber  was  cut  in  the  winter  of 
1840-41,  by  Samuel  Potter,  a  trespasser,  on  two  contiguous  tracts 
of  land,  and  hauled  into  a  brook,  to  be  floated  down  to  a  market. 
That  one  of  the  tracts  of  land  was  owned  by  the  defendant,  and 
that  the  other,  called  the  college  land,  was  owned  by  Timothy  Bou- 
telle.  That  in  the  spring  following,  the  timber  was  run  down  to 
the  Penobscot  river  and  rafted  into  eleven  rafts,  six  of  which  were 

7  See  Childs'  Personal  Property,   §5  284,  285. 


432  Cases  on  Personal  Property 

run  to  Bangor,  immediately  after  by  Potter,  and  ' '  delivered  to  the 
plaintiff  to  pay  him  what  Potter  owed  him,  and  the  balance  to  be 
paid  to  Potter  "  (the  plaintiff  having  supplied  Potter  while  cut- 
ting the  lumber).  "That  Potter  was  a  trespasser  on  both  lots, 
on  which  he  cut  the  timber ; ' '  and  that  ' '  there  was  no  other  inter- 
mingling of  the  timber  cut  from  both  tracts,  except  that  the  logs 
were  hauled  into  the  same  brook,  at  the  same  landing,  and  after- 
wards rafted  into  the  same  rafts,  there  being  no  marks  on  any 
of  the  timber. ' ' 

The  defendant  took  the  five  rafts  at  Oldtown,  as  his  property, 
and  soon  after  took  the  remaining  six  rafts  out  of  the  possession  of 
the  plaintiff,  at  Bangor. 

The  instructions  to  the  jury,  to  which  exceptions  were  taken  and 
urged  in  the  argiunent,  were: 

1.  TJiat,  if  a  part  of  the  lumber  was  cut  on  the  defendant's  land, 
and  a  part  on  the  college  land,  and  the  whole  was  mixed  together 
in  such  a  manner,  by  those  who  cut  it,  that  it  could  not  be  distin- 
guished, the  defendant  had  a  right  to  take  the  whole,  and  that  this 
action  of  trespass  could  not  be  maintained. 

2.  That  if  the  defendant  did  take  the  five  rafts  at  Oldtown,  and 
if  they  amounted  to  more  than  all  of  the  timber  cut  from  his  land, 
it  would  make  no  difference  where  he  took  it,  if  he  intended  to  seize 
all  of  the  timber  cut  as  before  mentioned,  if  they  found  that  it  was 
intermingled,  and  could  not  be  distinguished  as  before  stated. 

If  one  take  the  goods  of  another,  as  a  trespasser,  he  does  not 
thereby  acquire  a  title  to  them,  and  cannot  invest  another  with  a 
title ;  but  the  original  owner  may  follow  his  property  and  reclaim 
it  from  the  trespasser,  or  any  other  person  claiming  through  him, 
so  long  as  the  identity  can  be  established. 

If  the  timber  taken  by  Potter,  as  a  trespasser,  from  the  land  of 
the  defendant,  was  so  mingled  with  the  other  timber  taken  by  him 
from  the  college  land,  that  it  could  not  be  distinguished,  it  would  pro- 
duce what  is  denominated  a  confusion  of  goods.  Loomis  v.  Green, 
7  Greenl.  393 ;  Wingate  v.  Smith,  20  Me.  287 ;  Hazeltine  v.  Stock- 
well,  30  Maine  237 ;  Ryder  v.  Hathaway,  21  Pick.  298 ;  Willard  v. 
Rice,  11  Mete.  493 ;  Betts  v.  Lee,  5  Johns.  348 ;  Curtis  v.  Groat,  6 
Johns.  168 ;  Babcock  v.  Gill,  10  Johns.  287 ;  Brown  v.  Sax,  7  Cowen 
95 ;  Treat  v.  Barber,  7  Conn.  280 ;  Barron  v.  Cobleigh,  11  N.  H.  558. 

Where  the  confusion  or  commixture  of  goods  is  made  by  consent 
of  the  owners,  or  by  accident,  and  without  fault,  so  that  they  can- 
not be  distinguished,  but  the  identity  remains,  each  is  entitled  to 
his  proportion. 


Transfer  of  Property  by  Operation  of  Law  433 

This  was  also  the  doctrine  of  the  civil  law.  (Just.  Inst.  Lib.  2, 
tit.  1,  Par.  27,  28.) 

But  if  such  intermixture  be  wilfully  or  negligently  effected  by 
one,  without  the  knowledge  or  approbation  of  the  other  owner, 
the  latter  would  be  entitled  by  the  common  law  to  the  whole  prop- 
erty, without  making  satisfaction  to  the  former  for  his  loss.  The 
civil  law,  however,  required  the  satisfaction  to  be  made.  Browne's 
Civil  Law,  243 ;  Ward  v.  Ayre,  Cro.  Jac.  366 ;  2  Black.  Com.  405 ; 
2  Kent.  Com.  363,  364,  where  the  civil  law  is  stated  differently  by 
the  learned  Chancellor,  page  364;  Story's  Com.  on  Bailments,  Par. 
40 ;  Lupton  V.  White,  15  Vesey  440 ;  Hart  v.  Ten  Eyck,  2  Johns. 
Chan.  62. 

If  the  defendant  found  his  timber,  which  had  been  wrongfully 
taken  from  his  land,  mingled  with  other  timber,  in  the  manner  stated 
in  the  evidence,  so  that  it  could  not  be  distinguished,  he  had 
clearly  a  right  to  take  possession  of  the  whole,  without  committing 
an  act  of  trespass,  even  if  he  may  be  held  to  account  to  the  true 
owner  for  a  portion  of  it.  He  had,  at  least,  a  common  interest  in 
the  property,  and  in  taking  possession  he  asserted  only  a  legal 
right.  Inst.  Lib.  2,  tit.  1,  Par.  28;  Story's  Com.  on  Bailments, 
Par.  40. 

In  any  view  of  the  case,  upon  the  facts  presented,  the  instruc- 
tions were  correct. 

Exceptiotis  overruled.^ 


Wilful  Intermingling. 

JENKINS  et  al.  v.  STEANKA. 

19  Wis.  126,  88  Am.  Dec.  675.     1865. 

[Action  to  recover  a  quantity  of  lumber,  or  the  value  thereof 
($400),  together  with  damages  for  detention,  it  being  alleged  that 
the  lumber  was  manufactured  from  logs  cut  on  the  plaintiff's  land 
by  one  Wright  and  wilfully  intermingled  with  other  lumber  of  an 
inferior  quality  belonging  to  said  Wright.  Steanka,  the  master  of 
a  sloop  in  which  the  lumber  was  found  when  seized  by  the  sheriff, 
claimed  possession  by  right  of  a  lien  for  freight.  The  jury  found 
such  right  to  possession  in  Steanka ;  that  title  was  in  Wright ;  that 
the  value  was  $360;  damages  nominal.  Judgment  was  rendered 
accordingly  and  the  plaintiffs  appealed.] 
8  See  Childs'  Personal  Property,  §286. 
C.  P.  P.— 28 


434  Cases  on  Personal  Property 

By  the  Court,  Downer,  J. — This  is  an  action  to  recover  forty 
thousand  feet  of  pine  lumber,  alleged  in  the  complaint  to  be  wrong- 
fully detained  by  the  defendant,  and  of  the  value  of  $400.  The 
value  is  not  denied  by  the  answer.  At  the  trial,  the  plaintiffs  offered 
to  prove  the  value  less  than  $400 ;  but  the  circuit  court  refused  to 
permit  the  evidence  to  be  given,  holding  that  the  pleadings  fixed 
and  were  conclusive  as  to  the  amount  of  value.  In  this  the  court 
below  erred.  In  actions  of  trover,  trespass  or  replevin,  before  the 
code,  it  was  not  necessary  for  the  defendant  to  deny  the  amount 
of  the  value  or  the  allegation  of  damages,  and  in  this  respect  the 
code  has  not  altered  the  practice.  They  must  be  proved  even  though 
the  defendant  puts  in  no  answer.  Conness  v.  Main,  2  E.  D.  Smith 
314;  McKenzie  v.  Farrell,  4  Bosworth  202. 

Questions  were  put  to  different  witnesses  by  the  plaintiff,  during 
the  progress  of  the  trial,  as  to  what  the  kind  or  quality  of  the  lum- 
ber in  dispute  was.  The  court  below  refused  to  permit  these  ques- 
tions to  be  answered.  It  seems  to  us  the  answers  should  have  been 
received.  They  were  competent  as  bearing  on  the  question  of  the 
value  of  the  lumber;  also  for  another  purpose.  Testimony  was 
given  tending  to  prove  that  some  part  of  the  lumber  in  dispute 
was  manufactured  by  one  "Wright  in  his  mill,  at  Fremont,  out  of 
logs  belonging  to  the  plaintiffs  and  cut  on  streams  above  Fremont, 
and  that  there  was  a  great  difference  in  the  quality  of  lumber  sawed 
out  of  logs  cut  at  or  near  Fremont  and  that  cut  out  of  the  plaintiffs ' 
logs,  the  latter  being  much  superior  in  quality  to  the  former.  The 
defendants'  witnesses,  or  some  of  them,  testified  that  this  lumber 
was  made  out  of  logs  cut  at  Fremont.  After  this  testimony  was  in, 
the  plaintiffs  renewed  their  inquiry  as  to  the  quality  of  the  lumber 
in  dispute,  and  the  court  again  ruled  the  evidence  inadmissible. 
It  seems  to  us  that  it  was  clearly  admissible  as  tending  to  prove 
whether  the  lumber  in  dispute  was  manufactured  out  of  the  plain- 
tiffs' or  Wright's  logs. 

The  circuit  court  also  erred  in  instructing  the  jury  that  "if 
they  found  for  the  plaintiffs,  they  could  only  recover  the  amount 
of  lumber  which  they  have  proved  to  have  been  wrongfully  taken 
by  Wright,  although  it  may  have  been  commingled  with  the  lumber 
or  Wright  wrongfully."  The  law,  we  think,  is  that  if  Wright  wil- 
fully or  indiscriminately  intermixed  the  lumber  sawed  from  the 
logs  of  the  plaintiffs  with  his  own  lumber,  so  that  it  could  not  be 
distinguished,  and  the  lumber  so  mixed  was  of  different  qualities 
or  value,  then  the  plaintiffs  would  be  entitled  to  hold  the  whole. 
Willard  v.  Rice,  11  Met.  493;  2  Kent's  Com.  (3d.  ed.),  364;  Ryder 
v.  Hathaway,  21  Pick.  298. 


Transfer  op  Property  by  Operation  of  Law  435 

We  do  not  deem  it  neeessai*y  to  notice  other  rulings  assigned  for 
error  of  the  court  below  excluding  testimony,  as  the  same  questions 
may  not  arise  upon  a  new  trial. 

Judgment  of  the  court  below  reversed,  and  a  new  trial  ordered.^ 


ST.  PAUL  BOOM  CO.  v.  KEMP. 

125  Wis.  138,  103  N.  W.  259.     1.905. 
Replevin  to  recover  logs  and  timber. 

[The  plaintiff  boom  company,  whose  business  it  was  to  gather 
stray  logs  in  the  river  and  hold  them  for  the  owners,  had  in  its 
possession  in  the  Mississippi  river,  near  Prescott,  Wisconsin,  a 
brail  of  sixty-three  logs,  which,  when  sawed  into  lumber,  would 
make  about  8,000  feet.  One  James  Hackett  wilfully  dispossessed 
the  boom  company  of  the  logs  and  sold  them  to  the  defendant,  who, 
it  appears,  bought  them  with  full  knowledge  that  they  were  wrong- 
fully taken  from  the  plaintiff  company.  The  defendant  sawed  some 
of  the  logs  into  lumber  (about  6,000  feet),  and  intermingled  it  with 
other  lumber  in  his  yard.  Under  a  writ  of  replevin  the  plaintiff 
reclaimed  and  the  officer  took  possession  of  some  of  the  uncut  logs 
and  about  20,000  feet  of  lumber,  some  of  which  was  sawed  from  the 
plaintiff's  logs. 

Judgment  for  the  plaintiff  for  the  entire  quantity  of  logs  uncut, 
together  with  the  20,000  feet  of  lumber.    Defendant  appealed.] 

Siebecker,  J.  *  *  *  It  appears  from  the  opinion  of  the  trial 
court  that  it  concluded  that  the  fact  was  undisputed  in  the  case.  It 
appeared  that  Hackett  had  no  title  to  or  interest  in  the  logs  when  he 
sold  them  to  appellant ;  that  appellant  had  no  knowledge  or  infor- 
mation to  the  effect  that  Hackett  was  a  dealer  in  logs  or  lumber 
or  that  he  was  in  any  way  engaged  in  the  lumber  business ;  and  that 
appellant  purcha.sed  the  brail  of  logs  for  the  sum  of  $19.50,  when 
he  well  knew  that  they  were  worth  a  much  larger  sum  in  the  mar- 
ket. The  jury's  findings  that  he  had  good  reason  to  believe  at  the 
time  he  purchased  the  logs  that  Hackett  had  secured  possession  of 
them  wroncrfully,  that  he  had  been  informed  on  the  day  of  purchase 
that  they  had  ])een  wrongfully  and  forcibly  taken  from  the  boom 

8  See  Childs '  Personal  Property,  §  285. 


436  Cases  on  Personal.  Property 

company,  and  that  it  claimed  them  as  its  property  under  arrange- 
ments with  the  original  owners,  and  warned  and  notified  him  not 
to  manufacture  them  into  lumber,  were  all  well  supported  by  the 
evidence.  *  *  *  It  also  appeared  in  evidence  that  lumber  bear- 
ing the  log  marks  was  intermingled  with  other  lumber  in  piles, 
which,  under  the  finding  of  the  jury,  must  have  contained  a  much 
larger  quantity  than  the  logs  yielded.  This  state  of  the  evidence 
left  no  basis  for  a  finding  that  there  was  no  intentional  confusion 
of  this  lumber  with  that  of  appellant.     *     *     * 

When  the  verdict  had  been  so  framed  the  court  awarded  judg- 
ment in  respondent's  favor  for  the  recovery  of  the  logs  and  lumber 
seized  by  the  officer,  and  for  costs.  It  is  contended  that  this  is 
error.  The  jury  found  that  the  brail  of  logs  contained  8,000  feet 
of  manufactured  lumber,  that  the  total  value  of  the  logs  was  $120, 
and  that  the  quantity  recovered  by  respondent  was  worth  $30, 
which  on  the  basis  of  valuation  found  by  the  jury,  would  be  one- 
fourth  of  the  whole  amount;  thus  showing  that  three-fourths  of 
the  logs  had  been  manufactured  into  lumber,  which,  upon  this 
calculation,  amounted  to  6,000  feet.  The  officer  seized  20,000  feet 
of  the  manufactured  lumber,  or  14,000  feet  in  excess  of  the  amount 
the  logs  yielded.  The  trial  court  awarded  judgment  for  the  recov- 
ery of  the  whole  amount  seized  by  the  officer,  upon  the  ground 
that  a  wrongful  confusion  of  goods  operates  as  a  forfeiture  of  the 
interest  of  the  wrongdoer  in  all  of  the  goods  so  intermixed.  To 
operate  such  a  forfeiture  it  must  appear  that  the  lumber  manufac- 
tured out  of  the  respondent's  logs  and  that  of  appellant  with  which 
it  was  mixed  were  so  different  in  description,  quality,  and  value 
that  the  whole  mass  could  not  be  ratably  apportioned  in  proportion 
to  the  quantities  contributed  to  the  whole  mass  by  the  original 
owners.  The  evidence  does  not  tend  to  show  that  there  was  a 
difference  in  description,  quality  and  value  of  the  lumber  so  mixed. 
There  is  nothing  to  show  that  such  an  apportionment  could  not  be 
made,  and  that  respondent  would  not  be  fully  compensated  for  its 
damage  by  having  its  proportion  of  the  whole  mass  restored  to  it. 
The  legal  principle  governing  such  a  situation  is  stated  by  Judge 
Cooley  in  terms  as  follows : 

"Even  if  the  commingling  were  malicious  or  fraudulent,  a  rule 
which  would  take  from  the  wrongdoer  the  whole,  when  to  restore 
the  other  his  proportion  would  do  him  full  justice,  would  be  a 
rule  wholly  out  of  harmony  with  the  general  rules  of  civil  remedy, 
not  only  because  it  would  award  to  one  party  a  redress  beyond  his 


Transfer  of  Property  by  Operation  of  Law  437 

loss,  but  also  because  it  would  compel  the  other  party  to  pay,  not 
damages,  but  a  penalty."     Cooley,  Torts,  53.     *     *     * 

We  are  constrained  to  hold  that  the  judgment  is  erroneous,  in 
that  it  awarded  to  respondent  the  right  to  hold  and  retain  the  logs 
and  20,000  feet  of  lumber  seized  by  the  officer  under  the  writ  of 
replevin.  Respondent  was  entitled  to  the  logs  seized,  and  to  its 
full  proportion  out  of  the  entire  quantity  of  lumber  seized,  namely, 
6,000  feet,  and  the  costs  of  the  action;  and  appellant  was  entitled 
to  a  return  of  the  excess  of  the  lumber  so  seized ;  or,  if  the  lumber 
could  not  be  returned,  to  its  value,  without  any  damages  for  the 
seizure  of  such  excess  under  the  writ  of  replevin.     *     *     * 

By  the  Court. — The  judgment  of  the  circuit  court  is  hereby 
reversed.     *     *     *  ^^ 


Innocent  or  Accidental  Intermingling. 

GATES  V.  RIFLE  BOOM  CO. 

70  Mich.  309,  38  N.  W.  245.     1888. 

The  facts  are  stated  in  the  opinion. 

Morse,  J. — The  plaintiff,  in  his  lumbering  operations,  in  1882 
cut  over  the  line  upon  the  adjoining  land  of  Rust  Bros.  &  Co.,  and 
thereby  secured  and  marked  as  his  own  about  135,000  feet  of  logs 
belonging  to  the  latter.  These  logs  were  mixed  with  the  other  logs 
of  plaintiff,  and  banked  on  the  west  branch  of  the  Rifle  river.  Thej^ 
were  not  run  out  the  following  spring,  but  remained  in  the  roUway 
during  the  summer  and  fall  of  1883.  In  that  year  Rust  Bros.  &  Co. 
sent  some  scalers  where  the  plaintiff's  logs  were,  who  selected  out, 
as  best  they  could,  logs  of  the  same  quality  as  those  taken  from  the 
Rust  lands  by  plaintiff,  and  about  the  same  quantity,  and  marked 
them  with  the  stamp  of  Rust  Bros.  &  Co.  Such  logs  then  bore  two 
brand.s,  the  mark  of  plaintiff,  *'C.  0.  W.,"  and  the  Rust  mark, 
"7  R.  7."  Under  the  usual  contract  by  plaintiff  with  the  defendant 
boom  company  these  logs,  intermingled  with  other  logs  of  the  plain- 
tiff, were  driven  down  the  stream  in  the  summer  of  1884,  and 
received  in  the  defendant's  boom.  The  defendant  was  notified  by 
Rust  Bros.  &  Co.  not  to  deliver  the  logs  with  the  double  marks  upon 

"See  ChildB'  Personal  Property,  §285. 


438  Cases  on  Personal  Propekty 

them  to  plaintiff.  The  boom  company  thereupon  delivered  the  dou- 
ble-marked logs,  about  155,000  feet,  to  Rust  Bros.  &  Co.,  who,  find- 
ing that  more  were  marked  by  their  scalers  than  they  were  entitled 
to,  returned  to  plaintiff  20,590  feet  of  the  same.  The  plaintiff,  after 
demanding  these  logs  of  the  boom  company,  and  after  their  refusal 
to  deliver  them,  brought  this  suit  in  trover  in  the  circuit  court  for 
the  county  of  Bay.  The  cause  was  then  tried  before  a  jury,  and 
verdict  and  judgment  passed  for  the  defendant.     *     *     * 

It  was  claimed  by  the  plaintiff  upon  the  trial,  and  he  so  testified, 
that  the  logs  taken  by  Rust  Bros.  &  Co.  were  of  greater  value  in 
quality  than  those  cut  by  him  from  their  lands.  The  quantity  cut 
by  him  on  the  Rust  lands  was  not  claimed  to  be  less  than  the  quan- 
tity taken  by  Rust  Bros.  &  Co,  It  therefore  became  material  to 
ascertain,  upon  the  trial,  whether  the  defendant  was  a  willful 
trespasser,  or  cut  the  logs  innocently,  in  good  faith,  believing  that 
he  was  within  the  lines  of  his  own  land.  The  court  instructed  the 
jury  as  to  the  difference  between  a  willful  and  an  unintentional 
trespass,  stating  to  them,  in  substance,  that  if  the  trespass  was  a 
willful  one,  if  Gates  knew  he  was  cutting  the  logs  of  Rust  Bros. 
&  Co.,  and  so,  knowing  them  not  to  be  his,  intermingled  them  with 
his  own  so  that  they  could  not  be  distinguished,  Rust  Bros.  &  Co. 
had  a  right  to  take  more  than  their  ovm,  and  if,  in  order  to  get 
all  that  belonged  to  them,  and  without  intending  to  take  more  than 
belonged  to  them,  they  did  take  a  better  quality  of  logs  than  they 
had  lost,  if  they  did  not  make  the  selection  with  that  view,  the 
plaintiff  could  not  recover  for  such  excess  in  quality;  but  if  the 
plaintiff  cut  the  logs,  and  marked  and  mingled  them  with  his  own, 
in  good  faith,  believing  them  to  be  his  own,  then  if  Rust  Bros.  &  Co. 
took  more  than  they  were  entitled  to,  the  plaintiff  might  recover  the 
excess.  The  counsel  for  the  plaintiff  very  ably  and  forcibly  eon- 
tended  in  the  argument  here  that  if  the  plaintiff  was  innocent  of 
any  wrong,  he  was  entitled  to  recover  in  tihis  action,  if  Rust  Bros. 
&  Co.  took  no  more  logs  in  quality  or  quantity  than  were  cut  upon 
their  lands,  the  difference  between  the  value  of  the  logs  and  the 
value  of  the  standing  timber,  that  Rust  Bros.  &  Co.  could  claim 
no  more  than  the  value  of  the  .stumpage.  *  *  *  jje  claims  that 
in  this  case  the  plaintiff  added  innocently  to  the  value  of  this  timber 
the  cost  of  cutting  and  putting  in  the  logs,  which  was  the  sum  of 
$2.25  per  thousand  feet,  and  also  the  value  of  the  driving  and  boom- 
ing charges.  He  estimates  this  value  at  over  $300.  But  in  the  first 
place  it  seems  to  me  that  this  amount,  the  value  of  the  plaintiff's 
labor  and  expenses  upon  the  logs,  could  not  be  recovered  in  an  action 


Transfer  op  Property  by  Operation  of  Law  439 

of  trover.  The  logs  were  still  the  property  of  Rust  Bros.  &  Co. 
The  trespasser,  however  innocent,  could  acquire  no  property  in 
these  logs,  nor  could  he  acquire  a  lien  upon  them  for  such  labor 
and  expense.  The  conversion  of  trees  into  saw-logs  by  a  trespasser 
does  not  change  the  title  to  the  property,  nor  destroy  the  identity 
of  the  same.  The  owner  of  the  land  is  the  owner  of  the  logs,  and  the 
trespasser  has  no  title  to  them.  Therefore  when  he  regains  his  own, 
he  has  converted  no  property  of  the  trespasser  to  his  own  use. 
Stephenson  v.  Little,  10  Mich.  433 ;  Final  v.  Backus,  18  Mich.  218- 
232 J  Mining  Co.  v.  Hertin,  37  Mich.  337;  Arpin  v.  Burch  (Wis.), 
32  N.  W.  Rep.  681 ;  Winchester  v.  Craig,  33  Mich.  205 ;  Grant  v. 
Smith,  26  Mich.  201 ;  Tuttle  v.  White,  46  Mich.  485,  9  N.  W.  Rep. 
528.  *  *  *  There  can  be  no  doubt  that  the  rule  is  well  settled 
in  this  state  that  if  Rust  Bros.  &  Co.  had  taken  possession  of  these 
logs  while  they  were  lying  upon  their  lands,  they  would  have  been 
entitled  to  them  as  they  were,  and  that  no  claim  could  have  been 
made  against  them  by  the  plaintiff  for  the  labor  and  expense  of 
cutting  them.  The  identity  of  the  timber  would  not  then  have  been 
destroyed,  and  the  subsequent  intermingling  of  these  logs  with  the 
logs  of  plaintiff,  although  innocently  done,  could  not  change  the 
rights  of  the  owners.  The  evidence  shows  that  between  the  time 
Rust  Bros.  &  Co.  discovered  the  trespass  and  the  time  they  took 
possession  of  the  logs  by  marking  them,  no  labor  or  money  was 
expended  by  the  plaintiff  upon  them.  Therefore  it  follows  that 
as  this  case  stood  the  plaintiff  had  no  claim  upon  Rust  Bros  &  Co. 
that  he  could  enforce  in  this  action,  unless  they  took  possession 
of  a  better  quality  of  logs  than  he  cut  upon  their  premises  and  the 
same  amount  or  more  in  quantity,  and  his  trespass  and  intermin- 
gling of  the  property  was  innocently  done.  And  the  court  was 
right  in  his  interpretation  of  the  law  as  to  innocent  trespassers. 
The  seeming  injustice  pointed  out  in  the  argument  of  the  plaintiff's 
counsel  is  not  an  injustice,  but  the  result  of  the  election  of  the  owner 
to  take  less  than  he  is  by  law  entitled  to.  The  owner  of  standing 
timber  is  not  only  entitled  to  the  timber,  but  he  has  a  right  to  it 
as  it  is,  and  to  keep  it  uncut  if  he  so  desires.  No  man,  however 
innocently  he  may  do  it,  can  go  upon  his  land  and  convert  the 
standing  trees  into  logs  and  charge  him  for  the  labor  thus  expended 
against  his  will,  and  perhaps  against  his  real  benefit.  He  may 
prefer  to  have  the  timber  to  stand,  and  if  left  standing  a  few  years 
may  bring  him  immense  profit.  Such  instances  have  not  been  rare 
in  the  history  of  pine  timber  in  this  state.  The  supposed  enhance- 
ment of  his  property  by  the  labor  of  the  trespasser  may  thus  turn 


440  Cases  on  Personal,  Property 

out  to  be  a  positive  injury.  There  is  no  injustice  in  holding  that 
the  trespasser  must  lose  the  labor  he  has  expended  in  converting 
another's  trees  into  logs.  Such  trespasses,  though  casual  and  not 
willful,  are  ordinarily,  as  was  the  trespass  in  this  case,  the  result  of 
negligence  upon  the  part  of  the  trespasser,  and  there  is  no  good 
reason  why  he  should  be  recompensed  for  labor  and  expenses 
incurred  in  the  trespass  when  it  might  have  been  avoided  by  proper 
diligence.  The  owner  has  the  right  to  reclaim  his  logs,  but  if  he 
sees  fit  to  bring  an  action  of  trespass  or  trover  instead  of  regaining 
his  property  he  voluntarily  puts  himself  within  the  rule  of  damages 
prevailing  in  such  actions,  and  thereby  elects  to  receive  only  a  just 
and  fair  compensation  for  his  property  as  it  was  before  the  tres- 
passer intermeddled  with  it.  The  trespasser  cannot  complain  of 
this,  neither  can  he  complain  if  he  elects  to  take  his  property  if  he 
can  find  it.  As  was  well  said  in  Mining  Co.  v.  Hertin,  supra: 
"Nothing  could  more  encourage  carelessness  than  the  acceptance 
of  the  principle  that  one  who  by  mistake  performs  labor  upon  the 
property  of  another  should  lose  nothing  by  his  error."     *     *     * 

The  judgment  of  the  court  below  must  therefore  be  affirmed,  with 
costs.i^ 

Sherwood,  C.  J.,  and  Champlin  and  Long,  JJ.,  concurred.  Camp- 
bell, J.,  did  not  sit. 


PICKERING  V.  MOORE. 
67  N.  H.  533,  32  Atl.  828,  68  Am.  St.  Rep.  695,  31  L.  R.  A.  698.  1894. 
Action  of  trover  for  manure. 
The  facts  as  statfed  by  the  court  are  as  follows: 

March  31,  1883,  the  defendant  leased  his  farm  for  the  term  of 
three  years  to  the  plaintiff,  who  covenanted  to  carry  on  the  place 
in  a  husband-like  manner,  and  to  consume  and  convert  into  manure, 
to  Jbe  used  or  left  upon  the  premises,  all  hay  and  fodder  raised 
therlon.  The  plaintiff  occupied  the  farm,  and  performed  all  his 
covenants  contained  in  the  lease,  without  any  new  or  further 
contract,  until  May  30,  1892.  During  the  last  year  of  his  occu- 
pancy he  fed  out  upon  the  farm  a  large  quantity  of  fodder  not  pro- 

11  See  Childs'  Personal  Property,  §  286. 


Transfer  of  Property  by  Operation  of  Law  441 

dueed  on  the  place.  He  put  25  cords  of  the  manure  made  from  this 
fodder,  and  manure  of  the  same  quality  and  value  made  from  fod- 
der raised  on  the  place,  together  in  a  heap,  where  they  were  so  inter- 
mixed that  they  could  not  be  distinguished.  The  defendant  pre- 
vented him  from  taking  away  the  25  cords. 

Carpenter,  J. — The  plaintiff  held  the  farm  after  the  expiration 
of  three  years  as  tenant  from  year  to  year,  upon  the  terms  expressed 
in  the  lease.  *  *  *  Manure  made  upon  a  farm  by  the  consump- 
tion of  its  products  in  the  ordinary  course  of  husbandry  is  a  part 
of  the  realty.  It  cannot  be  sold  or  carried  away  by  a  tenant  without 
the  landlord's  consent.  Sa^\yer  v.  Twiss,  26  N.  H.  345,  349;  Perry 
V.  Carr,  44  N.  H.  118,  120 ;  Hill  v.  De  Roehemont,  48  N.  H.  87,  88. 

*  *  *  "Whether  a  tenant,  ' '  where  there  is  no  positive  agreement 
dispensing  with  the  engagement  to  cultivate  his  farm  in  a  husband- 
like manner,  is  bound  to  spend  the  hay  and  other  like  produce  upon 
it  as  the  means  of  preserving  and  continuing  its  capacity"  (Perry 
v.  Carr  and  Hill  v.  De  Roehemont,  supra),  *  *  *  is  a  dif- 
ferent, and  possibly  an  open,  question.  *  *  *  However  that 
may  be,  no  rule  of  good  husbandry  requires  a  tenant  to  buy  hay 
or  other  fodder  for  consumption  on  the  farm.  If,  in  addition  to 
the  stock  maintainable  from  its  products,  he  keeps  cattle  for  hire, 
and  feeds  them  upon  fodder  procured  by  purchase,  or  raised  by  him 
on  other  lands,  the  landlord  has  no  more  legal  or  equitable  interest 
in  the  manure  so  produced  than  he  has  in  the  fodder  before  it  is 
consumed.     It  is  not  made  in  the  ordinary  course  of  husbandry. 

*  *     # 

The  plaintiff  did  not  lose  his  property  in  the  manure  by  inter- 
mixing it  with  the  defendant's  manure,  of  the  same  quality  and 
value,  w^ithout  his  consent.  It  is  not  claimed  that  the  plaintiff 
mixed  the  manure  with  any  fraudulent  or  wrongful  intent.  ' '  The 
intentional  and  innocent  intermixture  of  property  of  substantially 
the  same  quality  and  value  does  not  change  the  o^\^lership.  And  no 
one  has  a  right  to  take  the  whole,  but,  in  so  doing,  commits  a  tres- 
pass on  the  other  owner.  He  should  notify  him  to  make  a  division, 
or  take  his  own  proportion  at  his  peril,  taking  care  to  leave  to  the 
other  owner  as  much  as  belonged  to  him."  *  *  *  "Even  if 
the  commingling  were  malicious  or  fraudulent,  a  rule  of  law  which 
would  take  from  the  wrongdoer  the  whole,  when  to  restore  to  the 
other  his  proportion  would  do  him  full  justice,  would  be  a  rule  not 
in  harmony  wnth  the  general  rules  of  civil  remedy,  not  only  because 
it  would  award  to  one  party  a  redress  beyond  his  loss,  but  because 


442  Cases  on  Personal  Property 

it  would  compel  the  other  party  to  pay,  not  damages  but  a  pen- 
alty."   Cooley,  Torts,  53,  54. 

Whether  the  parties  were  tenants  in  common  of  the  manure  is 
a  question  that  need  not  be  determined.     *     *     *     Assuming  that 
they  were,  the  action  may  be  maintained.     A  tenant  in  common 
has  the  same  right  to  the  use  and  enjoyment  of  the  common  prop- 
erty that  he  has  to  his  sole  property,  except  in  so  far  as  it  is  lim- 
ited by  the  equal  right  of  his  cotenants.    Where  two  have  each  an 
equal  title  to  an  indivisible  chattel,  ''as  of  a  horse,  an  ox,  or  a 
cow,"  neither,  without  actual  and  exclusive  possession  of  the  chat- 
tel, can  enjoy  his  moiety.     Simultaneous  enjoyment  by  each  of  his 
equal  right  is  impossible.     *     *     *     Until  an  adjudication  of  their 
rights,  neither  can  assert  a  title  in  severalty  to  any  portion  of  the 
property.     When  the  common  property   is  divisible,   by  weight, 
measure,  or  number,  into  portions  identical  in  quality  and  value, 
as  corn  and  various  other  articles,  a  different  case  is  presented. 
There  is  no  question  of  legal  or  equitable  right.    There  is,  and  can 
be,  no  dispute  that  a  court  of  law  or  equity  can  settle.     Counting, 
weighing,  and  measuring  are  not  judicial,  but  ministerial,  func- 
tions.   Equity  could  do  no  more  than  decree  that  each  might  take 
so  many  pounds,  bushels,  or  yards,  or  so  many  of  the  articles  in  num- 
ber, and  enforce  its  decree  by  process, — in  other  words,  enforce  the 
conceded  right.     One  may,  in  general,  do  without  a  decree  what 
equity  would  decree  that  he  might  do.     Neither  law  nor  equity 
allows  one,  in  the  exercise  of  his  own  rights,  to  do  an  unnecessary 
and  avoidable  injury  to  another.    One  is  entitled  to  the  possession 
of  the  whole  in  those  cases  only  where  it  is  necessary  to  his  enjoy- 
ment of  his  moiety.     Here  it  is  not  necessary.     There  is  no  more 
difficulty  in  separating  one  portion  from  another  than  there  is  in 
selecting  A.'s  marked  sheep  from  B.'s  flock.    Either  may  make  the 
division.     The  law  is  not  so  unreasonable  as  to  compel  a  resort  to 
the  courts  in  order  to  obtain  a  partition  which  either  may  make 
without  expense,  and  without  danger  of  injustice  to  his  cotenant. 
Except  in  Daniels  v.  Brown,  34  N.  H.  454,  it  has  never  been  held, 
so  far  as  observed,  that  a  tenant  in  common  is  liable  to  his  cotenant, 
in  any  form  of  proceeding,  for  taking  from  the  latter 's  possession, 
and  consuming  or  destroying  his  just  proportion,  only,  of  the  com- 
mon property.     *     *     *     A  tenant  in  common  of  goods  divisible 
by  tale  or  measure  may,  without  the  consent  and  against  the  will 
of  his  cotenant,  rightfully  take  and  appropriate  to  his  sole  use,  sell, 
or  destroy,  so  much  of  them  as  he  pleases,  not  exceeding  his  share, 
and  by  so  doing  effect,  pro  tanto,  a  valid  partition.    To  this  extent, 


Transfer  of  Property  by  Operation  of  Law  443 

Daniels  v.  Brown,  supra,  is  overruled.  Haley  v.  Colcord,  59  N.  H.  8 ; 
*  *  *  The  defendant,  by  preventing  the  plaintiff'  from  taking 
his  part  of  the  manure,  exercised  a  dominion  over  it  inconsistent 
with  the  plaintiff's  rights.    Evans  v.  Mason,  64  N.  H.  98,  5  Atl.  766. 

Judgment  for  the  plaintiff. ^^ 
"Wallace,  J.,  did  not  sit.    The  others  concurred. 

uSee  Childs'  Personal  Property,  §286. 


CHAPTER  X. 
HOW  PROPERTY  CEASES  TO  EXIST. 

Police  Power — Nature  of. 

SLAUGHTER-HOUSE  CASES. 

(The  Butchers'   Benevolent   Association  of  New   Orleans  v.   The 
Crescent  City  Live-Stock  Landing  and  Slaughter-House  Company.) 

83  U.  S.  36,  21  L.  Ed.  394.    1872. 

The  facts  are  stated  in  the  opinion. 

Miller,  J. — These  cases  are  brought  here  by  writs  of  error 
to  the  supreme  court  of  the  state  of  Louisiana.  They  arise 
out  of  the  efforts  of  the  butchers  of  New  Orleans  to  resist  the  Cres- 
cent City  Live-Stock  Landing-  &  Slaughter-House  Company  in  the 
exercise  of  certain  powers  conferred  by  the  charter  which  created 
it,  and  which  was  granted  by  the  legislature  of  that  state. 

The  cases  named  above,  with  others  which  have  been  brought 
here  and  dismissed  by  agreement,  were  all  decided  by  the  supreme 
court  of  Louisiana  in  favor  of  the  Slaughter-House  Company,  as  we 
shall  hereafter  call  it  for  the  sake  of  brevity,  and  these  writs  are 
brought  to  reverse  those  decisions. 

The  records  were  filed  in  this  court  in  1870,  and  were  argued 
before  it  at  length  on  a  motion  made  by  plaintiffs  in  error  for  an 
order  in  the  nature  of  an  injunction  or  supersedeas,  pending  the 
action  of  the  court  on  the  merits.  The  opinion  on  that  motion  is 
reported  in  10  Wall.  273,  19  L.  Ed.  915.     *     *     * 

The  records  show  that  the  plaintiffs  in  error  relied  upon,  and 
asserted  throughout  the  entire  course  of  the  litigation  in  the  state 
courts,  that  the  grant  of  privileges  in  the  charter  of  defendant, 
which  they  were  contesting,  was  a  violation  of  the  most  important 
provisions  of  the  13th  and  14th  articles  of  Amendment  of  the  Con- 
stitution of  the  United  States.     The  jurisdiction  and  the  duty  of 

444 


How  Property  Ceases  to  Exist  445 

this  court  to  review  the  judgment  of  the  state  court  on  those  ques- 
tions is  clear  and  is  imperative. 

The  statute  thus  assailed  as  unconstitutional  was  passed  March 
8,  1869,  and  is  entitled  "An  Act  to  Protect  the  Health  of  the  City 
of  New  Orleans,  to  Locate  the  Stock-landings  and  Slaughter-houses, 
and  to  Incorporate  the  Crescent  City  Live-Stock  Landing  and 
Slaughter-House  Company. ' ' 

The  1st  section  forbids  the  landing  or  slaughtering  of  animals 
whose  flesh  is  intended  for  food,  within  the  city  of  New  Orleans 
and  other  parishes  and  boundaries  named  and  defined ;  or  the  keep- 
ing or  establishing  any  slaughter-houses  or  abattoirs  within  those 
limits  except  by  the  corporation  thereby  created,  which  is  also  lim- 
ited to  certain  places  afterwards  mentioned.  Suitable  penalties  are 
enacted  for  violations  of  this  prohibition.     *     *     * 

It  declares  that  the  company,  after  it  shall  have  prepared  all  the 
necessary  buildings,  yards,  and  other  conveniences  for  that  purpose, 
shall  have  the  sole  and  exclusive  privilege  of  conducting  and  carrj-- 
ing  on  the  live-stock  landing  and  slaughter-house  business  within  the 
limits  and  privilege  granted  by  the  act,  and  that  all  such  animals 
shall  be  landed  at  the  stock  landing  and  slaughtered  at  the  slaughter- 
houses of  the  company,  and  nowhere  else.  Penalties  are  enacted  for 
infractions  of  this  provision,  and  prices  fixed  for  the  maximum 
charges  of  the  company,  for  each  steamboat  and  for  each  animal 
landed. 

Section  5  orders  the  closing  up  of  all  other  stock-landings  and 
slaughter-houses  after  the  first  day  of  June,  in  the  parishes  of 
Orleans,  Jefferson,  and  St.  Bernard,  and  makes  it  the  duty  of  the 
company  to  permit  any  person  to  slaughter  animals  in  their 
slaughter-houses  under  a  heavy  penalty  for  each  refusal.  Another 
section  fixes  a  limit  to  the  charges  to  be  made  by  the  company  for 
each  animal  so  slaughtered  in  their  building,  and  another  provides 
for  an  inspection  of  all  animals  intended  to  be  so  slaughtered,  by 
an  officer  appointed  by  the  governor  of  the  state  for  that  pur- 
pose.    *     *     * 

It  is  not,  and  cannot  be  successfully  controverted,  that  it  is  both 
the  right  and  the  duty  of  the  legislative  body,  the  supreme  power 
of  the  state  or  municipality,  to  prescribe  and  determine  the  locali- 
ties where  the  business  of  .slaughtering  for  a  great  city  may  be 
conducted.  To  do  this  effectively  it  is  indispensable  that  all  per- 
sons who  slaughter  animals  for  food  shall  do  it  in  those  places  and 
nowhere  else.     *     *     * 

The  power  here  exerci-sed  by  the  legislature  of  Louisiana  is,  in 


446  Cases  on  Personal  Property 

its  essential  nature,  one  which  has  been,  up  to  the  present  period 
in  the  constitutional  history  of  this  country,  always  conceded  to 
belong  to  the  states,  however  it  may  now  be  questioned  in  some 
of  its  details. 

Unwholesome  trades,  slaughter-houses,  operations  offensive  to 
the  senses,  the  deposit  of  powder,  the  application  of  steam  power 
to  propel  cars,  the  building  with  combustible  materials,  and  the 
burial  of  the  dead,  may  all,"  says  Chancellor  Kent,  2  Com.  340, 
''be  interdicted  by  law,  in  the  midst  of  dense  masses  of  population, 
on  the  general  and  rational  principle,  that  every  person  ought  so 
to  use  his  property  as  not  to  injure  his  neighbors ;  and  that  private 
interests  must  be  made  subservient  to  the  general  interests  of  the 
community."  This  is  called  the  police  power;  and  it  is  declared 
by  Chief  Justice  Shaw  that  it  is  much  easier  to  perceive  and  realize 
the  existence  and  sources  of  it  than  to  mark  its  boundaries,  or  pre- 
scribe limits  to  its  exercise.    Com.  v.  Alger,  7  Cush.  84. 

This  power  is,  and  must  be  from  its  very  nature,  incapable  of 
any  very  exact  definition  or  limitation.  Upon  it  depends  the  secur- 
ity of  social  order,  the  life  and  health  of  the  citizen,  the  comfort 
of  an  existence  in  a  thickly  populated  community,  the  enjoyment  of 
private  and  social  life,  and  the  beneficial  use  of  property. 

"It  extends,"  says  another  eminent  judge,  "to  the  protection 
of  the  lives,  limbs,  health,  comfort  and  quiet  of  all  persons,  and 
the  protection  of  all  property  within  the  state ;  *  *  *  and  per- 
sons and  property  are  subjected  to  all  kinds  of  restraints  and  bur- 
dens in  order  to  secure  the  general  comfort,  health  and  prosperity 
of  the  state.  Of  the  perfect  right  of  the  legislature  to  do  this  no 
question  ever  was,  or,  upon  acknowledged  general  principles,  ever 
can  be  made,  so  far  as  natural  persons  are  concerned. ' '  Thorpe  v. 
Eut.  &  B.  R.  Co.,  27  Vt.  149. 

"The  regulation  of  the  place  and  manner  of  conducting  the 
slaughtering  of  animals,  and  the  business  of  butchering  within  a 
city,  and  the  inspection  of  the  animals  to  be  killed  for  meat,  and 
of  the  meat  afterwards,  are  among  the  most  necessary  and  frequent 
exercises  of  this  power.  It  is  not, /therefore,  needed  that  we  should 
seek  for  a  comprehensive  definition,  but  rather  look  for  the  proper 
source  of  its  exercise.     *     *     * 

The  exclusive  authority  of  state  legislation  over  this  subject  is 
strikingly  illustrated  in  the  ease  of  New  York  v.  Miln,  11  Pet.  102. 
In  that  case  the  defendant  was  prosecuted  for  failing  to  comply 
with  a  statute  of  New  York  which  required  every  master  of  a  vessel 
arriving  from  a  foreign  port,  into  that  of  New  York  city,  to  report 


How  Property  Ceases  to  Exist  447 

the  names  of  all  his  passengers,  with  certain  particulars  of  their 
age,  occupation,  last  place  of  settlement,  and  place  of  their  birth. 
It  was  argued  that  this  act  was  an  invasion  of  the  exclusive  right 
of  congress  to  regulate  commerce.  And  it  cannot  be  denied  that 
such  a  statute  operated  at  least  indirectly  upon  the  commercial 
intercourse  between  the  citizens  of  the  United  States  and  of  for- 
eign countries.  But  notwithstanding  this  it  was  held  to  be  an 
exercise  of  the  police  power  properly  within  the  control  of  the 
state,  and  unaffected  by  the  clause  of  the  Constitution  which  con- 
ferred on  congress  the  right  to  regulate  commerce.     *     *     * 

It  cannot  be  denied  that  the  statute  under  consideration  is  aptly 
framed  to  remove  from  the  more  densely  populated  part  of  the 
city  the  noxious  slaughter-houses,  and  large  and  offensive  collec- 
tions of  animals  necessarily  incident  to  the  slaughtering  business 
of  a  large  city  and  to  locate  them  where  the  convenience,  health, 
and  comfort  of  the  people  require  they  shall  be  located.  And  it 
must  be  conceded  that  the  means  adopted  by  the  act  for  this  pur- 
pose are  appropriate,  are  stringent  and  effectual.  But  it  is,  said 
that,  in  creating  a  corporation  for  this  purpose,  and  conferring 
upon  it  exclusive  privileges — privileges  which  it  is  said  constitute 
a  monopoly — the  legislature  has  exceeded  its  power.  If  this  statute 
had  imposed  on  the  city  of  New  Orleans  precisely  the  same  duties, 
accompanied  by  the  same  privileges,  which  it  has  on  the  corporation 
which  it  created,  it  is  believed  that  no  question  would  have  been 
raised  as  to  its  constitutionality.    *    *    * 

It  may,  therefore,  be  considered  as  established,  that  the  authority 
of  the  legislature  of  Louisiana  to  pass  the  present  statute  is  ample, 
unless  some  restraint  in  the  exercise  of  that  power  be  found  in  the 
Constitution  of  that  state  or  in  the  amendments  to  the  Constitution 
of  the  United  States,  adopted  since  the  date  of  the  decisions  we  have 
already  cited.     *     *     * 

The  plaintiffs  in  error  accepting  this  issue,  allege  that  the  statute 
is  a  violation  of  the  Constitution  of  the  United  States  in  these 
several  particulars: 

That  it  creates  an  involuntary  servitude  forbidden  by  the  13th 
article  of  amendment; 

That  it  abridges  the  privileges  and  immunities  of  citizens  of  the 
United  States; 

That  it  denies  to  the  plaintiffs  the  equal  protection  of  the  laws ; 
and, 

That  it  deprives  them  of  their  property  without  due  process  of 


448  Cases  on  Personal  Property 

law ;  contrary  to  the  provisions  of  the  1st  section  of  the  14th  article 
of  amendment.^ 

(The  court,  after  deciding  these  propositions  in  the  negative, 
affirmed  the  decision  of  the  Supreme  Court  of  Louisiana. 

Mr.  Chief  Justice  Chase,  Mr.  Justice  Field,  Mr.  Justice 
SwAYNE,  and  Mr.  Justice  Bradley  dissented.) 


Sleeping  Car  Berths. 

STATE  V.  REDMON. 
134  Wis.  89,  114  N.  W.  137,  14  L.  K.  A.  (N.  8.)  1003.     1907. 
The  facts  as  stated  by  the  court  are  as  follows : 

The  first  action  was  for  a  violation  of  chapter  266,  p.  402,  Laws 
1907,  September  5,  1907,  and  the  second  for  a  violation  thereof 
August  26,  1907.  The  person  whose  rights  under  such  law  were 
violated  in  the  latter  was  a  passenger  between  points  within  the 
state,  and  the  one  in  the  former  was  an  interstate  passenger. 

The  report  shows  that  defendant  was  convicted  in  each  case  in 
due  form  of  law,  and  the  existence  of  all  circumstances  necessary 
to  raise  the  question  of  whether  the  enactment,  supposed  to  warrant 
the  prosecution,  is  constitutional.  The  purpose  of  the  report  is  to 
obtain  a  determination  of  such  question.  These  facts  with  others 
are  in  substance  stated :  The  sleeping  car  in  question  was  divided 
into  a  stateroom,  a  smoking  room  and  12  sections,  each  of  such 
sections  containing  a  double  upper  and  lower  berth  arranged  in 
the  usual  way  common  to  ordinary  Pullman  sleeping  cars.  The 
price  charged  for  a  berth  varied  somewhat  according  to  distance 
and  time  of  use.  The  price  in  the  first  case  was  $1.50,  and  in  the 
second  $2.  Prior  to  the  passage  of  the  law  it  had  been  customary 
upon  making  up  the  lower  berth  for  use  of  a  customer  to  let  down 
the  upper  berth,  whether  it  had  been  theretofore  engaged  or  not, 
and  to  prepare  it,  in  whole  or  in  part,  for  occupancy  and  to  use 
it  for  sleeping  or  other  purposes.  The  complainant  in  each  case 
engaged  and  paid  for  a  double  low-er  berth  and  ordered  the  accused, 
who  was  the  porter  of  the  car,  to  leave  the  upper  berth  closed,  since 
it  had  not  been  sold  and  there  was  no  one  to  occupy  it.    The  porter 

iSee  Childs'  Personal  Property,  §§265,  324. 


How  Property  Ceases  to  Exist  449 

nevertheless,  following  the  usual  custom,  under  orders  from  his 
employer,  let  down  the  upper  berth,  notifying  the  complainant  that 
he  was  required  to  do  that  unless  such  berth  was  paid  for. 

The  law  in  question  is  as  follows: 

"An  act  *  *  *  relating  to  the  health  and  comfort  of  occu- 
pants of  sleeping  car  berths. 

' '  The  people  of  the  state  of  Wisconsin,  represented  in  senate  and 
assembly,  do  enact  as  follows : 

"1.  "Whenever  a  person  pays  for  the  use  of  a  double  lower  berth 
in  a  sleeping  car,  he  shall  have  the  right  to  direct  whether  the  upper 
berth  shall  be  open  or  closed,  unless  the  upper  berth  is  actually 
occupied  by  some  other  person ;  and  the  proprietor  of  the  car  and 
the  person  in  charge  of  it  shall  comply  with  such  direction. 

"2.  Any  person  or  corporation  violating  the  provisions  of  this 
act  shall  be  punished  by  imprisonment  in  the  county  jail  not  more 
than  six  months,  or  by  a  fine  not  exceeding  one  hundred  dollars." 

Marshall,  J. — It  is  conceded  that  the  legislation  in  question  was 
an  attempt  to  exercise  the  police  power  of  the  state  which  is  inherent 
in  sovereign  authority  under  such  limitations  as  exist  in  the  national 
and  state  constitutions,  and  that  if  as  a  police  regulation  it  is  not 

legitimate  it  is  not  the  law  though  possessing  the  form  thereof. 

*    *    * 

The  idea  is  found  expressed  now  and  then,  that  the  police  power 
is  something  not  dealt  with  or  affected  by  the  Constitution,  at 
least  in  any  marked  degree,  which  is  a  mistake  hardly  excusable. 
The  error  suggested  here  and  there,  that  the  police  power  is  "a 
sovereign  power  in  the  state,  to  be  exercised  by  the  legislature, 
which  is  outside,  and  in  a  sense  above,  the  Constitution  (Donnelly 
V.  Decker,  58  Wis.  461,  17  N.  W.  389,  46  Am.  Rep.  637),  and  that 
a  police  regulation  which  is  clearly  a  violation  of  express  consti- 
tutional inhibition  'is  legitimate,  subject  to  a  judicial  test  as  to 
reasonableness  *  *  *  and  others  of  a  .similar  character  now  and 
then  found  in  legal  opinion  and  text-books,  are  highly  misleading" 
and  have  been  distinctly  discarded  by  this  court.  State  ex  rel. 
Milwaukee  Medical  College  v.  Chittenden,  127  Wis.  468-521,  107  N. 
W.  500.  As  was  there  said,  "If  it  were  true  that  all  police  regula- 
tions are  legitimate  which  are  reasonable,  and  all  are  reasonable 
which  the  legislature  so  wills,  the  Constitution  as  to  veiy  much  of 
the  field  of  civil  government  would  be  of  no  use  whatever.  The  con- 
trary has  been  the  rule  without  any  legitimate  question  since  Mar- 
bury  V.  Madison,  1  Cranch  (U.  S.)  137,  2  L.  Ed.  60." 
C.  P.  P.— 29 


450  Cases  on  Personal  Property 

The  following  significant  expressions  of  this  court  as  to  the  con- 
stitutional limitations  in  the  exercise  of  the  police  power  leave 
nothing  further  to  be  said  on  the  subject: 

*'As  the  police  power  imposes  restrictions  and  burdens  upon  the 
natural  and  private  rights  of  individuals,  it  necessarily  depends 
upon  the  law  for  its  support;  and,  although  of  comprehensive 
and  far-reaching  character,  it  is  subject  to  constitutional  restric- 
tions. *  *  *"  State  ex  rel.  Adams  v.  Burdge,  95  Wis.  390-398, 
70  N.  W.  347,  349,  37  L.  R.  A.  157,  60  Am.  St.  Rep.  123.     *     *     * 

' '  The  police  power  has  been  wittily  defined  as  the  power  to  pass 
unconstitutional  laws,  and  some  utterances  of  courts  have  seemed 
to  justify  such  conception.  It  is  nevertheless  erroneous.  An 
act  which  the  Constitution  clealy  prohibits  is  beyond  the  power  of 
the  legislature,  however  proper  it  might  be  as  a  police  regulation 
but  for  such  prohibition."  State  ex  rel.  Jones  v.  Froehlich,  115 
Wis.  32-42,  91  N.  W.  115,  118,  58  L.  R.  A.  757,  95  Am.  St.  Rep.  894. 

"So  legislation  referring  to  police  authority  for  legitimacy,  like 
any  other  exercise  of  the  law-making  power,  must  bear  the  test  of 
constitutional  limitations,   which  will   be   found  upon   all   sides. 

^        9P        ■?? 

The  police  power  is  so  obviously  essential  to  the  public  welfare 
that  it  is  presumed  the  framers  of  the  Constitution  did  not  intend 
to  prohibit  its  exercise  where  reasonably  necessary  therefor,  though 
such  exercise  might  invade  the  scope,  vieM'ing  the  language  in  the 
literal  sense,  of  some  fundamental  prohibition,  as  that  against  tak- 
ing property  for  public  use  without  rendering  just  compensation 
therefor.  So  it  is  said  that  a  law  authorizing  the  destruction  by 
public  authority  of  private  property  without  the  owner's  consent, 
where  necessary  to  prevent  the  spread  of  a  contagious  disease,  is 
legitimate  not  because  the  police  power  is  above  or  superior  to 
or  not  dealt  with  by  the  Constitution,  but  because  it  was  not 
intended  to  deal  with  the  suggested  situations  by  such  express 
prohibition.  Therefore  the  law  is  not  to  be  regarded  as  a  violation 
thereof,  though  if  the  field  of  reasonable  necessity  were  exceeded 
that  of  the  prohibition  would  be  invaded.  *  *  *  So  a  police 
regulation,  correctly  speaking,  is  no  more  legitimate  than  a  law  in 
any  other  field  if  it  in  fact  violates  any  principle  entrenched  in  the 
Constitution. 

What  is  this  police  power  about  which  so  much  is  said,  and 
which  is  so  commonly,  and  generally  speaking,  legitimately  invoked 
as  a  justification  for  legislation  regulating  the  affairs  of  life?  In 
view  of  the  multiplication  of  legislative  enactments  hedging  the 


How  Property  Ceases  to  Exist  451 

citizen  about  as  to  many  of  such  affairs  and  in  a  manner  quite 
novel  as  compared  with  former  conditions,  it  is  quite  important 
that  the  character  of  that  broad  power  and  its  limitations  by  the 
fundamental  law  should  be  as  accurately  understood  as  practicable. 

Many  attempts  have  been  made  to  define  police  power.  There 
is  good  reason  to  say  that  the  multitude  of  such  attempts,  with  the 
many  variations  in  phrasing  the  matter,  have  not  added  very  much 
to  the  simple  expression  that  it  is  the  power  to  make  all  laws  which, 
in  contemplation  of  the  Constitution,  promote  the  public  welfare. 
That  both  defines  the  power  and  states  the  limitations  upon  its 
exercise,  it  being  understood  that  it  is  a  judicial  function  to  deter- 
mine the  proper  subject  to  be  dealt  with,  and  that  it  is  a  legislative 
function,  primarily,  to  determine  the  manner  of  dealing  therewith, 
but  ultimately  a  judicial  one  to  determine  whether  such  manner 
of  dealing  so  passes  the  boundaries  of  reason  as  to  overstep  some 
constitutional  limitation,  express  or  implied. 

This  court,  in  common  with  others,  has  said  that  the  police  power 
extends  to  legislation  regulating,  reasonably,  that  is  to  an  extent 
not  entering  the  realms  of  the  destructive,  all  matters  appertaining 
to  the  lives,  limbs,  health,  comfort,  good  morals,  peace  and  safety 
of  society.  Baker  v.  State,  54  Wis.  368-372,  12  N.  W.  12;  State 
ex  rel.  Larkin  v.  Ryan,  70  Wis.  676-681,  36  N.  W.  823 ;  State  v. 
Heinemann,  80  Wis.  253,  49  N.  W.  818,  27  Am.  St.  Rep.  34 ;  Bitten- 
haus  V.  Johnson,  92  Wis.  588,  66  N.  W.  805,  32  L.  R.  A.  380 ;  State 
ex  rel.  Kellogg  v.  Currens,  111  Wis.  431,  87  N.  W.  561,  56  L.  R.  A. 
252.  Again  this  court  said,  by  way  of  approval  of  expressions  of 
standard  authors  and  opinions  in  leading  cases,  the  police  power 
includes  "all  laws  for  the  protection  of  life,  limb  and  health,  for 
the  quiet  of  the  person  and  for  the  security  of  property."  "All 
persons  and  property  are  subjected  to  all  necessaiy  restraints  and 
burdens  to  secure  the  general  comfort,  health  and  prosperity  of 
the  state."  "It  is  co-extensive  with  self-protection  and  is  not 
inaptly  termed  'the  law  of  necessity.'  It  is  that  inherent  and 
plenary  power  in  the  state  which  enables  it  to  prohibit  all  things 
hurtful  to  the  comfort  and  welfare  of  .society."  State  ex  rel. 
Adams  V.  Burdge,  95  Wis.  390-398,  70  N.  W.  347,  37  L.  R.  A.  157, 
66  Am.  St.  Rep.  123.  These  and  many  other  similar  phrasings, 
meaning  the  same  thing,  are  far  from  being  entirely  satisfactory. 
They  are  misleading  to  one  who  reads  them  without  having  in 
mind  the  idea  that  all  legislative  regulations  of  human  affairs  inter- 
fering with  personal  liberty  or  other  private  rights,  to  be  legitimate, 


452  Cases  on  Personal.  Property 

tested  by  constitutional  limitations,  must  be  reasonably  for  the 
public  benefit. 

It  were  better  to  always  say  that  the  police  power  extends  to  and 
permits  legislation  regulating  reasonably  matters  appertaining  to 
the  public  welfare,  since  anything  beyond  that  must  necessarily 
fall  at  the  threshold  of  some  constitutional  defense.  It  is  a  great 
power,  having  more  to  do  with  the  well-being  of  society  than  any 
other,  yet  one  which  if  exercised  autocratically  would  supersede 
some  of  the  most  cherished  principles  of  constitutional  freedom. 
It  may  be  extended  disastrously,  or  restrained  and  administered 
beneficially,  according  as  the  judiciary  shall  perform  its  constitu- 
tional functions.  Confined  within  its  legitimate  field  of  reasonable 
regulation  it  is  essential,  as  we  have  heretofore  indicated,  to  the 
full  accomplishment  of  the  purposes  of  civil  government.     *     *     * 

With  the  foregoing  general  observations  as  to  the  character  and 
limitations  upon  the  police  power,  we  shall  proceed  to  consider, 
respecting  the  law  in  question,  these  propositions:  Is  it  a  police 
regulation,  laying  aside  for  the  purposes  of  the  inquiry  the  question 
of  whether  it  is  within  the  constitutional  field?  Second,  if  it  be 
such  a  regulation,  is  it  outside  the  field  of  reasonable  interference 
with  private  rights? 

The  ostensible  purpose  of  the  law,  as  indicated  by  its  title,  is 
to  promote  the  "health  and  comfort  of  occupants  of  sleeping  car 
berths."  Words  were  used  in  such  title  ex  industria,  seemingly,  to 
give  to  the  enactment,  unmistakably,  the  character  of  a  police  regu- 
lation, but  a  law  is  not  necessarily  one  to  promote  the  public  health 
and  comfort  of  people  generally,  or  of  a  legitimate  class  thereof, 
merely  because  such  is  its  declared  pui*pose. 

As  it  is  a  judicial  function  to  define  the  proper  subjects  for  the 
exercise  of  police  power  (Town  of  Lake  View  v.  Rose  Hill  Ceme- 
tery Company,  70  111.  191,  22  Am.  Rep.  71),  it  must  be  to  decide, 
as  to  any  enactment,  whether  it  really  relates  to  a  legitimate  sub- 
ject, or  under  the  guise  of  doing  so,  violates  rights  of  persons  or 
property.  The  idea  that  all  legislation  is  within  the  police  power 
which  the  law-making  authority  determines  to  be  so,  and  that  all 
which  might  be  within  such  power  is  within  it  if  the  legislature 
so  determines,  is,  as  we  have  seen,  a  heresy,  and  one  which  was 
repudiated  sufficient  for  all  time  by  the  early  decision,  heretofore 
referred  to,  in  Marbury  v.  Madison,  supra,  the  American  classic 
which  first  and  conclusively  defined  the  general  character  of  the 
constitutional  limitations  and  the  relations  of  the  legislature  and 
the  judiciary  thereto  and  to  each  other.     The  doctrine  there  laid 


How  Property  Ceases  to  Exist  453 

doTm  more  than  a  centurj^  ago  in  the  unanswerable  logic  of  Chief 
Justice  Marshall  has  never  been  departed  from,  except  accidentally, 
inconsiderately  or  ignorantly.     *     *     * 

It  is  not  every  enactment  which  will  to  some  extent  promote 
the  public  health,  comfort  or  convenience,  which  is  legitimate. 
Otherwise  the  way  would  be  open  for  legislative  interference  with 
the  ordinary  affairs  of  life  to  an  extent  destructive  of  many  of  the 
most  valuable  purposes  of  civil  government.    *    *     * 

The  doctrine  that  the  police  power  is  really  a  law  of  necessity 
forms  the  key,  it  would  seem,  with  which  to  unlock  the  mysteries, 
so  far  as  practicable,  of  what  is  within  and  what  is  without  the 
limits  of  such  power.  Not  that  a  police  regulation,  in  form  or  pre- 
tense, to  be  one  in  fact,  must  supply  some  absolute  essential  to  the 
public  welfare,  but  that  the  exigency  to  be  met  must  so  concern 
such  welfare,  be  sufficiently  vital  thereto,  as  to  suggest  some  reason- 
able necessity  for  a  remedy  affordable  only  by  a  legislative  enact- 
ment, as  to  efficiently  invite  public  attention  thereto,  it  being 
regarded  as  a  legislative  function  to  primarily  pass  upon  the  mat- 
ter. No  more  definite  rule  can  be  well  w^orked  out  except  as  it 
may  be  evolved  by  the  process  of  inclusion  and  exclusion  in  the 
treatment  of  cases  as  they  arise.     *     *     * 

Now  how  is  it  with  sleeping  cars,  as  regards  whether  the  upper 
berths  are  open  or  closed  when  the  lower  ones  are  occupied,  respect- 
ing any  substantial  danger,  inconvenience  or  discomfort  to  persons 
generally  patronizing  such  utilities ;  danger  sufficient  to  challenge 
attention  as  one  reasonably  requiring  for  the  public  interests  a 
remedy?  Persons  so  circumstanced  as  a  rule,  we  apprehend,  are 
so  indifferent  as  to  whether  the  upper  berth  is  closed  or  not  that 
they  would  not  seriously  think  of  having  it  closed  at  their  expense 
or  to  the  extent  of  even  a  small  sum.  Many  probably  would  prefer 
to  have  it  open  if  they  were  permitted  to  deposit  some  of  their 
belongings  therein  in  case  of  its  not  being  otherwise  occupied, 
which  is  commonly  allowed.  That  is  recognized  in  the  law  itself. 
Had  it  been  thought  that  there  is  a  substantial  reason  why,  in  the 
public  interests,  an  upper  berth  should  be  closed  when  unoccupied, 
in  case  of  the  lower  one  being  in  use,  the  law  would  have  so  pro- 
vided in  all  cases,  instead  of  leaving  it  to  the  mere  dictation, 
whether  springing  from  judgment  or  mere  whim,  of  each  individual 
customer  for  a  lower  berth,  to  control  the  upper  one,  in  respect  to 
the  matter.  To  thus  leave  such  a  matter  to  the  mere  caprice  of  the 
occupant  of  the  lower  beHh  is  a  confession  on  the  face  of  the  act 
that  it  was  not  treated  by  the  legislature  as  one  deemed  to  be  rea- 


454  Cases  on  Person.vl  Property 

sonably  vital  to  the  public  interests.  So  the  law  is  not,  in  reality, 
a  police  regulation  but  an  unwarranted  intereference  with  property 
rights;  an  attempt  in  the  circumstances  specified  to  give  to  any 
person,  at  his  option,  who  pays  for  a  part  of  a  section  in  a  sleeping 
car  the  use,  free  of  charge,  of  the  balance  thereof.  *  *  *  In 
the  foregoing  it  is  not  intended  to  foreclose  the  question  of  whether 
the  scope  of  police  power  extends  to  preventing,  as  a  rule,  the 
letting  down  of  upper  berths  in  sleeping  cars  when  not  occupied 
or  engaged,  in  cases  where  the  lower  ones  are  occupied.     *     *     * 

It  follows  that  an  arbitrary  appropriation  in  the  name  of  law 
of  the  space  of  an  upper  berth  in  a  sleeping  car  for  the  greater 
comfort  and  safety,  as  regards  the  health  of  the  occupant  of  the 
lower  berth,  at  his  option,  if  such  use  of  such  space  were  reasonably 
necessary,  is  highly  oppressive.  A  regulation  under  the  police 
power  securing  such  privilege,  in  case  of  the  upper  berth  not 
being  engaged,  by  paying  for  it,  would  present  a  different  ques- 
tion.    *     *     * 

The  question  submitted  for  decision  in  the  first  case  is  answered 
in  the  negative,  and  the  same  question  submitted  in  the  second  case 
is  likewise  answered.^ 


Intoxicating  Liquors. 
MUGLER  V.  STATE  OF  KANSAS. 
123  U.  8.  623,  S  Sup.  Ct.  Rep.  273,  31  L.  Ed.  205.     1887. 
The  facts  as  stated  by  the  court  are  as  follows : 

These  cases  involve  an  inquiry  into  the  validity  of  certain  statutes 
of  Kansas  relating  to  the  manufacture  and  sale  of  intoxicating 
liquors.  The  first  two  are  indictments,  charging  Mugler,  the  plain- 
tiff in  error,  in  one  case,  with  having  sold,  and  in  the  other  with 
having  manufactured,  spirituous,  vinous,  malt,  fermented,  and 
other  intoxicating  liquors,  in  Saline  county,  Kansas,  without  having 
the  license  or  permit  required  by  the  statute.  The  defendant, 
having  been  found  guilty,  was  fined,  in  each  case,  $100,  and  ordered 
to  be  committed  to  the  county  jail  until  the  fine  was  paid.  Each 
judgment  was  affirmed  by  the   Supreme  Court  of  Kansas,   and 

2  See  Childs'  Personal  Property,  §§265,  324. 


How  Property  Ceases  to  Exist  455 

thereby,  it  is  contended,  the  defendant  was  denied  rights,  privi- 
leges, and  immunities  guarantied  by  the  constitution  of  the  United 
States.  *  *  *  Upon  the  petition  and  bond  of  the  defendants, 
the  cause  was  removed  into  the  circuit  court  of  the  United  States 
for  the  district  of  Kansas,  upon  the  ground  that  the  suit  was  one 
arising  under  the  constitution  of  the  United  States.  A  motion  to 
remand  it  to  the  state  court  was  denied.  The  pleadings  were  recast 
so  as  to  conform  to  the  equity  practice  in  the  courts  of  the  United 
States;  and,  the  cause  having  been  heard  upon  bill  and  answer, 
the  suit  was  dismissed.  From  that  decree  the  state  prosecutes  an 
appeal. 

By  a  statute  of  Kansas,  approved  March  3,  1868,  it  was  made  a 
misdemeanor,  punishable  by  fine  and  imprisonment,  for  any  one, 
directly  or  indirectly,  to  sell  spirituous,  vinous,  fermented,  or  other 
intoxicating  liquors,  without  having  a  dram-shop,  tavern,  or  grocery 
license.  It  was  also  enacted,  among  other  things  that  every  place 
where  intoxicating  liquors  were  sold  in  violation  of  the  statute 
should  be  taken,  held,  and  deemed  to  be  a  common  nuisance ;  and 
it  was  required  that  all  rooms,  taverns,  eating-houses,  bazaars,  res- 
taurants, groceries,  coffee-houses,  cellars,  or  other  places  of  public 
resort  where  intoxicating  liquors  were  sold,  in  violation  of  law, 
should  be  abated  as  public  nuisances.  Gen.  St.  Kan.  1868,  c.  35. 
But  in  1880  the  people  of  Kansas  adopted  a  more  stringent  policy. 
On  the  second  of  November  of  that  year  they  ratified  an  amendment 
to  the  state  constitution,  which  declared  that  the  manufacture  and 
sale  of  intoxicating  liquors,  should  be  forever  prohibited  in  that 
state,  except  for  medical,  scientific,  and  mechanical  purposes.  In 
order  to  give  effect  to  that  amendment,  the  legislature  repealed  the 
act  of  1868,  and  passed  an  act,  approved  February  19,  1881,  to  take 
effect  May  1,  1881,  entitled  "An  act  to  prohibit  the  manufacture 
and  sale  of  intoxicating  liquors,  except  for  medical,  scientific,  and 
mechanical  purposes,  and  to  regulate  the  manufacture  and  sale 
thereof  for  such  excepted  purposes."    *     *     * 

The  facts  nece-ssary  to  a  clear  understanding  of  the  questions, 
common  to  these  cases,  are  the  following:  Mugler  and  Ziebold  & 
Hagelin  were  engaged  in  manufacturing  beer  at  their  respective 
establishments  (constructed  specially  for  that  purpose),  for  several 
years  prior  to  the  adoption  of  the  constitutional  amendment  of 
1880.  They  continued  in  such  business  in  defiance  of  the  statute 
of  1881,  and  without  having  the  required  permit.  Nor  did  Mugler 
have  a  license  or  permit  to  sell  beer.  The  single  sale  of  which  he 
was  found  guilty  occurred  in  the  state,  and  after  May  1,  1881,  that 


456  Cases  on  Personal.  Property 

is,  after  the  act  of  February  19,  1881,  took  effect,  and  was  of  beer 
manufactured  before  its  passage.  The  buildings  and  machinery 
constituting  these  breweries  are  of  little  value  if  not  used  for  the 
purpose  of  manufacturing  beer;  that  is  to  say,  if  the  statutes  are 
enforced  against  the  defendants  the  value  of  their  property  will 
be  very  materially  diminished. 

Mr.  Justice  Harlan. — The  general  question  in  each  case  is 
whether  the  foregoing  statutes  of  Kansas  are  in  conflict  with  that 
clause  of  the  fourteenth  amendment,  which  provides  that  ' '  no  state 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States;  nor  shall  any  state 
deprive  any  person  of  life,  liberty,  or  property  without  due  process 
of  law."  That  legislation  by  a  state  prohibiting  the  manufacture 
within  her  limits  of  intoxicating  liquors,  to  be  there  sold  or  bartered 
for  general  use  as  a  beverage,  does  not  necessarily  infringe  any 
right,  privilege,  or  immunity  secured  by  the  constitution  of  the 
United  States,  is  made  clear  by  the  decisions  of  this  court,  rendered 
before  and  since  the  adoption  of  the  fourteenth  amendment;  to 
some  of  which,  in  view  of  questions  to  be  presently  considered,  it 
will  be  well  to  refer. 

In  the  License  Cases,  5  How.  504,  the  question  was  whether  cer- 
tain statutes  of  Massachusetts,  Rhode  Island,  and  New  Hampshire, 
relating  to  the  sale  of  spirituous  liquors,  were  repugnant  to  the 
constitution  of  the  United  States.  In  determining  that  question,  it 
became  necessary  to  inquire  whether  there  was  any  conflict  between 
the  exercise  by  congress  of  its  power  to  regulate  commerce  with 
foreign  countries,  or  among  the  several  states,  and  the  exercise  by 
a  state  of  what  are  called  police  powers.  Although  the  members 
of  the  court  did  not  fully  agree  as  to  the  grounds  upon  which  the 
decision  should  be  placed,  they  were  unanimous  in  holding  that  the 
statutes  then  under  examination  were  not  inconsistent  with  the  con- 
stitution of  the  United  States,  or  with  any  act  of  congress.  *  *  * 
Mr.  Justice  McLean,  among  other  things,  said:  "A  state  regulates 
its  domestic  commerce,  contracts,  the  transmission  of  estates,  real 
and  personal,  and  acts  upon  internal  matters  which  relate  to  its 
moral  and  political  welfare.  Over  these  subjects  the  federal  gov- 
ernment has  no  power.  *  *  *  The  acknowledged  police  power 
of  a  state  extends  often  to  the  destruction  of  property.  A  nuisance 
may  be  abated.  Everything  prejudicial  to  the  health  or  morals 
of  a  city  may  be  removed. "    *    *    * 

*    *    *    In  Beer  Co.  v.  Massachusetts,  97  U.  S.  33,  it  was  said 


How  Property  Ceases  to  Exist  457 

that,  ''as  a  measure  of  police  regulation,  looking  to  the  preservation 
of  public  morals,  a  state  law  prohibiting  the  manufacture  and  sale 
of  intoxicating  liquors  is  not  repugnant  to  any  clause  of  the  con- 
stitution of  the  United  States."  Finally,  in  Foster  v.  Kansas,  112 
U.  S.  206,  5  Sup.  Ct.  Rep.  97,  the  court  said  that  the  question  as 
to  the  constitutional  power  of  a  state  to  prohibit  the  manufacture 
and  sale  of  intoxicating  liquors  was  no  longer  an  open  one  in  this 
court.  These  cases  rest  upon  the  acknowledged  right  of  the  states 
of  the  Union  to  control  their  purely  internal  affairs,  and,  in  so 
doing,  to  protect  the  health,  morals,  and  safety  of  their  people  by 
regulations  that  do  not  interfere  with  the  execution  of  the  powers 
of  the  general  government,  or  violate  rights  secured  by  the  consti- 
tution of  the  United  States.    *    *    * 

It  is,  however,  contended  that,  although  the  state  may  prohibit 
the  manufacture  of  intoxicating  liquors  for  sale  or  ba*rter  within 
her  limits,  for  general  use  as  a  beverage,  "no  convention  or  legisla- 
ture has  the  right,  under  our  form  of  government,  to  prohibit  any 
citizen  from  manufacturing  for  his  own  use,  or  for  export  or  storage, 
any  article  of  food  or  drink  not  endangering  or  affecting  the  rights 
of  others."  *  *  *  It  wll  be  observed  that  the  proposition,  and 
the  argument  made  in  support  of  it,  equally  concede  that  the  right 
to  manufacture  drink  for  one 's  personal  use  is  subject  to  the  con- 
dition that  such  manufacture  does  not  endanger  or  affect  the  rights 
of  others.  If  such  manufacture  does  prejudicially  affect  the  rights 
and  interests  of  the  community,  it  follows,  from  the  very  premises 
stated,  that  society  has  the  power  to  protect  itself,  by  legislation, 
against  the  injurious  consequences  of  that  business.  *  *  *  But 
by  whom,  or  by  what  authority,  is  it  to  be  determined  whether  the 
manufacture  of  particular  articles  of  drink,  either  for  general  use 
or  for  the  personal  use  of  the  maker,  will  injuriously  affect  the 
public  ?  *  *  *  Under  our  system  that  power  is  lodged  with  the 
legislative  branch  of  the  government.  It  belongs  to  that  department 
to  exert  what  are  known  as  the  police  powers  of  the  state,  and  to 
determine,  primarily,  what  measures  are  appropriate  or  needful 
for  the  protection  of  the  public  morals,  the  public  health,  or  the 
public  safety. 

It  does  not  at  all  follow  that  every  statute  enacted  ostensibly 
for  the  promotion  of  these  ends  is  to  be  accepted  as  a  legitimate 
exertion  of  the  police  powers  of  the  state.  There  are,  of  necessity, 
limits  beyond  which  legislation  cannot  rightfully  go.  *  *  * 
If,  therefore,  a  statute  purporting  to  have  been  enacted  to  protect 
the  public  health,  the  public  morals,  or  the  public  safety,  has  no 


458  Cases  on  Personal  Property 

real  or  substantial  relation  to  those  objects,  or  is  a  palpable  invasion 
of  rights  secured  by  the  fundamental  law,  it  is  the  duty  of  the 
courts  to  so  adjudge,  and  thereby  give  effect  to  the  constitution. 

Keeping  in  view  these  principles,  as  governing  the  relations  of 
the  judicial  and  legislative  departments  of  government  with  each 
other,  it  is  difficult  to  perceive  any  ground  for  the  judiciary  to 
declare  that  the  prohibition  by  Kansas  of  the  manufacture  or  sale, 
within  her  limits,  of  intoxicating  liquors  for  general  use  there  as 
a  beverage,  is  not  fairly  adapted  to  the  end  of  protecting  the  com- 
munity against  the  evils  which  confessedly  result  from  the  excessive 
use  of  ardent  spirits.  *  *  *  And  so,  if,  in  the  judgment  of  the 
legislature,  the  manufacture  of  intoxicating  liquors  for  the  maker's 
own  use,  as  a  beverage,  would  tend  to  cripple,  if  it  did  not  defeat, 
the  efforts  to  guard  the  community  against  the  evils  attending  the 
excessive  use  of  such  liquors,  it  is  not  for  the  courts,  upon  their 
views  as  to  what  is  best  and  safest  for  the  community,  to  disregard 
the  legislative  determination  of  that  question.  So  far  from  such 
a  regulation  having  no  relation  to  the  general  end  sought  to  be 
accomplished,  the  entire  scheme  of  prohibition,  as  embodied  in  the 
constitution  and  laws  of  Kansas,  might  fail,  if  the  right  of  each 
citizen  to  manufacture  intoxicating  liquors  for  his  own  use  as  a 
beverage  were  recognized.  Such  a  right  does  not  inhere  in  citizen- 
ship.   *    *    * 

This  conclusion  is  unavoidable,  unless  the  fourteenth  amendment 
of  the  constitution  takes  from  the  states  of  the  Union  those  powers 
of  police  that  were  reserved  at  the  time  the  original  constitution 
was  adopted.  But  this  court  has  declared,  upon  full  consideration, 
in  Barbier  v.  Connolly,  113  U.  S.  31,  that  the  fourteenth  amendment 
had  no  such  effect.  After  observing,  among  other  things,  that  that 
amendment  forbade  the  arbitrary  deprivation  of  life  or  liberty,  and 
the  arbitrary  spoliation  of  property,  and  secured  equal  protection 
to  all  under  like  circumstances,  in  respect  as  well  to  their  personal 
and  civil  rights  as  to  their  acquisition  and  enjoyment  of  property, 
the  court  said :  ' '  But  neither  the  amendment,  broad  and  compre- 
hensive as  it  is,  nor  any  other  amendment,  was  designed  to  interfere 
with  the  powder  of  the  state,  sometimes  termed  'its  police  power,' 
to  prescribe  regulations  to  promote  the  health,  peace,  morals,  edu- 
cation, and  good  order  of  the  people,  and  to  legislate  so  as  to  increase 
the  industries  of  the  state,  develop  its  resources,  and  add  to  its 
wealth  and  prosperity. "    *    *    * 

Upon  this  ground,  if  we  do  not  misapprehend  the  position  of 
defendants,  it  is  contended  that,  as  the  primary  and  principal  use 


How  Property  Ceases  to  Exist  459 

of  beer  is  as  a  beverage ;  as-  their  respective  breweries  were  erected 
when  it  was  lawful  to  engage  in  the  manufacture  of  beer  for  every 
purpose ;  as  such  establishments  will  become  of  no  value  as  property, 
or,  at  least,  will  be  materially  diminished  in  value,  if  not  employed 
in  the  manufacture  of  beer  for  every  purpose, — the  prohibition 
upon  their  being  so  employed  is,  in  effect,  a  taking  of  property  for 
public  use  without  compensation,  and  depriving  the  citizen  of  his 
property  without  due  process  of  law.     *     *     * 

*  *  *  The  power  which  the  states  have  of  prohibiting  such 
use  by  individuals  of  their  property,  as  will  be  prejudicial  to  the 
health,  the  morals,  or  the  safety  of  the  public,  is  not,  and,  consist- 
ently with  the  existence  and  safety  of  organized  society,  cannot 
be,  burdened  with  the  condition  that  the  state  must  compensate 
such  individual  owners  for  pecuniary  losses  they  may  sustain,  by 
reason  of  their  not  being  permitted,  by  a  noxious  use  of  their  prop- 
erty, to  inflict  injury  upon  the  community.  The  exercise  of  the 
police  power  by  the  destruction  of  property  which  is  itself  a  public 
nuisance,  or  the  prohibition  of  its  use  in  a  particular  way,  whereby 
its  value  becomes  depreciated,  is  very  different  from  taking  property 
for  public  use,  or  from  depriving  a  person  of  his  property  without 
due  process  of  law.  In  the  one  case,  a  nuisance  only  is  abated ;  in 
the  other,  unoffending  property  is  taken  away  from  an  innocent 
owner.  It  is  true,  when  the  defendants  in  these  cases  purchased 
or  erected  their  breweries,  the  laws  of  the  state  did  not  forbid  the 
manufacture  of  intoxicating  liquors.  But  the  state  did  not  thereby 
give  any  assurance,  or  come  under  an  obligation,  that  its  legislation 
upon  that  subject  would  remain  unchanged.  Indeed,  as  wa«  said 
in  Stone  v.  Mississippi,  101  U.  S.  814,  the  supervision  of  the  public 
health  and  the  public  morals  is  a  governmental  power,  ' '  continuing 
in  its  nature,"  and  "to  be  dealt  with  as  the  special  exigencies  of 
the  moment  may  require;"  and  that,  "for  this  purpose,  the  largest 
legislative  discretion  is  allowed,  and  the  discretion  cannot  be  parted 
with  any  more  than  the  power  itself."  So  in  Beer  Co.  v.  Massa- 
chusetts, 97  U.  S.  32:  "If  the  public  safety  or  the  public  morals 
require  the  di.scontinuance  of  any  manufacture  or  traffic,  the  hand 
of  the  legislature  cannot  be  stayed  from  providing  for  its  discon- 
tinuance by  any  incidental  inconvenience  which  individuals  or 
corporations  may  suffer."     *     *     * 

For  the  reasons  stated,  we  are  of  opinion  that  the  judgments  of 
the  Supreme  Court  of  Kansas  have  not  denied  to  Mugler,  the  plain- 
tiff in  error,  any  right,  privilege,  or  immunity  secured  to  him  by 


460  Cases  on  PERSONAii  Property 

the  constitution  of  the  United  States,  and  its  judgment,  in  each 
case,  is  accordingly  affirmed. ^ 


Regulation  of  Hours  of  Labor. 
WITHEY  et  al.  v.  BLOEM  et  al. 
163  Mich.  419,  128  N.  W.  913.     1910. 
The  facts  are  stated  in  the  opinion. 

Moore,  J. — The  International  Seal  &  Lock  Company  is  a  corpo- 
ration engaged  in  manufacturing  large  quantities  of  seals  which 
are  used  by  railroad  companies  and  shippers  of  freight  for  the 
purpose  of  locking  the  doors  of  freight  cars.  Aben  E.  Johnson 
is  an  assistant  to  the  general  manager  of  the  factory  of  the  said 
corporation,  and  the  other  complainants  are  women  employed  by 
said  corporation  in  its  factory.  The  legislature  of  1909  passed  an 
act  entitled:  "An  act  to  provide  for  the  creation  of  a  department 
of  labor ;  to  prescribe  its  powers  and  duties ;  to  regulate  the  employ- 
ment of  labor;  to  make  an  appropriation  for  the  maintenance  of 
such  department  and  to  prescribe  penalties  for  the  violation  of 
this  act."  Laws  1909,  No.  285.  Section  9  of  said  act  provides,  in 
part,  that:  "No  female  shall  be  employed  in  any  factory,  mill, 
warehouse,  workshop,  clothing,  dressmaking  or  millinery  establish- 
ment, or  any  place  where  the  manufacture  of  any  kind  of  goods 
is  carried  on,  or  where  any  goods  are  prepared  for  manufacturing, 
or  in  any  laundry,  store,  shop  or  any  other  mercantile  establish- 
ment, for  a  period  longer  than  an  average  of  nine  hours  in  a  day 
or  fifty-four  hours  in  any  week  nor  more  than  ten  hours  in  any 
one  day:  Provided,  however.  That  the  provisions  of  this  section 
in  relation  to  the  hours  of  employment  shall  not  apply  to  nor  affect 
any  person  engaged  in  preserving  perishable  goods  in  fruit  and 
vegetable  canning  establishments."  The  complainants  filed  a  bill 
of  complaint  in  chancery  asking  to  have  the  provisions  of  section 
9  and  section  54  of  said  act  held  unconstitutional.  The  defendants 
filed  a  demurrer  to  the  bill  of  complaint.  The  demurrer  was  over- 
ruled by  the  trial  court  for  the  reason  that  the  proviso  in  section  9 
was  class  legislation.    The  defendants  have  appealed  to  this  court. 

3  See  ChUds'  Personal  Property,  §§324,  325. 


How  Property  Ceases  to  Exist  461 

It  is  not  claimed  the  act  is  contrary  to  the  provisions  of  the  Con- 
stitution of  this  state  because  section  29  of  article  5  of  the  Revised 
Constitution  of  the  State  of  j\Iichigan  reads  as  follows:  "The 
Legislature  shall  have  power  to  enact  laws  relative  to  the  hours  and 
conditions  under  which  women  and  children  may  be  employed." 
It  is  claimed  as  follows  (we  quote  from  brief  of  counsel)  :  "  (a) 
The  law  violates  the  fourteenth  amendment  to  the  Constitution  of 
the  United  States,  unless  it  can  be  defined  as  a  'health'  law.  (b) 
The  law  does  not  purport  to  be  a  'health'  law,  or  to  be  passed  to 
meet  an  emergency  and  to  protect  the  health  of  women,  (c)  The 
law,  therefore,  if  sustained  at  all,  must  be  sustained  on  the  theory 
that  labor  at  any  employment  by  women  for  more  than  an  average 
of  nine  hours  is  harmful,  and  that  a  law  so  restricting  female  labor 
is  a  reasonable  exercise  of  the  police  power,  (d)  The  law  is,  how- 
ever, void  as  class  legislation,  since  it  discriminates  between  the 
various  classes  of  female  labor."  Counsel  subdivide  each  of  these 
heads  and  argue  them  at  length,  citing  many  authorites  which  they 
claim  apply. 

It  must  be  conceded  at  the  outset  that  the  courts  have  differed 
about  the  questions  involved.  The  most  marked  difference,  how- 
ever, is  between  the  earlier  decisions  and  the  later  ones.  In  Bierly 
on  Police  Power,  p.  9,  it  is  said:  "The  police  power  has  been 
defined  to  be  devoted  to  the  protection  of  the  lives,  health,  and 
property  of  citizens  and  the  maintenance  of  good  order.  It  is  the 
power  of  the  state  to  make  all  manner  of  reasonable  laws  for  the 
welfare  of  the  commonwealth  and  the  good  people  thereof."  In 
Russell  on  Police  Power,  at  page  28,  it  is  said  that  "the  range 
of  legislation  with  respect  to  subjects  of  governmental  control  in 
the  exercise  of  the  police  power  has  been  much  extended  within 
the  last  quarter  of  a  century.  The  reason  for  this  is  obvious.  Mod- 
ern social  life  has  called  into  being  many  agencies  not  heretofore 
existing."  The  learned  author  then  gives  many  instances  of  its 
exercise,  among  them  in  the  prevention  of  diseases,  the  public 
health,  and  concerning  the  hours  of  labor,  and  forbidding  or  regu- 
lating contracts  for  the  labor  of  women  and  children.  The  author 
expresses  the  opinion  that,  "with  reference  to  many  of  the  matters 
above  named,  there  has  been  a  progressive  development  of  govern- 
mental functions,  and  this  development  is  likely  to  continue  with 
the  increased  application  of  science  to  the  business  of  life." 

From  what  we  have  quoted  from  the  brief  of  counsel  it  is  evident 
that  two  important  questions  are  presented :  First,  is  the  legisla- 
tion in  violation  of  the  fourteenth  amendment  to  the  Constitution 


462  Cases  on  Personal  Property 

of  the  United  States  because  it  interferes  with  the  right  to  labor 
and  to  make  contracts  in  relation  thereto?  Second,  is  it  class 
legislation  ? 

In  support  of  the  first  proposition,  counsel  cite  a  number  of 
authorities,  one  of  which  (Lochner  v.  New  York,  198  U.  S.  45,  25 
Sup.  Ct.  539,  49  L.  Ed.  937)  they  regard  of  so  much  importance 
that  they  quote  from  it  at  great  length  in  the  brief.  A  consultation 
of  the  opinion  shows  that  the  labor  law  which  was  before  the  court 
was  not  legislation  in  the  interest  of  women  or  of  minors,  but 
applied  to  all  employes  of  bakeries.  The  court  said  of  the  legisla- 
tion which  was  then  before  it  that  the  limit  of  the  police  power 
was  reached  and  passed,  and  that  the  case  differs  widely  from 
Holden  v.  Hardy,  169  U.  S.  366,  18  Sup.  Ct.  383,  42  L.  Ed.  780, 
and  Jacobson  v.  Masachusetts,  197  U.  S.  11,  25  Sup.  Ct.  358,  49 
L.  Ed.  643.  In  the  course  of  the  opinion  Justice  Peckham,  speak- 
ing for  the  court,  used  the  following  language :  ' '  The  general  right 
to  make  a  contract  in  relation  to  his  business  is  part  of  the  liberty 
of  the  individual  protected  by  the  fourteenth  amendment  of  the 
federal  Constitution."     *     *     * 

In  Muller  v.  Oregon,  208  U.  S.  412,  28  Sup.  Ct.  324,  52  L.  Ed. 
551,  which  involved  the  construction  of  a  statute  relating  to  the 
hours  of  labor  of  women  employed  in  laundries,  Justice  Brewer, 
who  wrote  the  opinion,  referred  to  the  case  of  Lochner  v.  New 
York,  supra,  as  follows:  "We  held,  in  Lochner  v.  New  York,  198 
U.  S.  45  (25  Sup.  Ct.  539,  49  L.  Ed.  937),  that  a  law  providing 
that  no  laborer  shall  be  required  or  permitted  to  work  in  a  bakery 
more  than  60  hours  in  a  week  or  10  hours  in  a  day  was  not  as  to 
men  a  legitimate  exercise  of  the  police  power  of  the  state,  but 
an  unreasonable,  unnecessary,  and  arbitrary  interference  with  the 
right  and  liberty  of  the  individual  to  contract  in  relation  to  his 
labor,  and  as  such  was  in  conflict  with,  and  void  under,  the  federal 
Constitution.  That  decision  is  invoked  by  plaintiff  in  error  as 
decisive  of  the  question  before  us.  But  this  assumes  that  the  differ- 
ence between  the  sexes  does  not  justify  a  different  rule  respecting 
the  restriction  of  the  hours  of  labor. ' '  He  also  referred  to  a  copious 
collection  of  data  as  to  the  course  of  legislation  and  expressions  in 
relation  to  the  restrictions  imposed  upon  the  labor  of  women,  and 
proceeds  as  follows:  "While  there  have  been  but  few  decisions 
bearing  directly  upon  the  question,  the  following  sustain  the  con- 
stitutionality of  such  legislation.  Commonwealth  v.  Hamilton  Mfg. 
Co.,  120  Mass.  383;  Wenham  v.  State,  65  Neb.  394,  400,  406  (91 
N.  W.  421,  58  L.  R.  A.  825)  ;  State  v.  Buchanan,  29  Wash.  602 


How  Property  Ceases  to  Exist  463 

(70  Pac.  52,  59  L.  R.  A.  342,  92  Am.  St.  Rep.  930)  ;  Commonwealth 
V.  Beatty,  15  Pa.  Super.  Ct.  5,  17.  Against  them  is  the  case  of 
Ritchie  V.  People,  155  111.  98  (40  N.  E.  454,  29  L.  R.  A.  79,  46  Am. 
St.  Rep.  315).  The  legislation  and  opinions  referred  to  in  the 
margin  may  not  be,  technically  speaking,  authorities,  and  in  them 
is  little  or  no  discussion  of  the  constitutional  question  presented 
to  us  for  determination,  yet  they  are  significant  of  a  widespread 
belief  that  woman 's  physicial  structure,  and  the  functions  she  per- 
forms in  consequence  thereof,  justify  special  legislation  restricting 
or  qualifying  the  conditions  under  which  she  should  be  permitted 
to  toil.  *  *  *  It  is  undoubtedly  true,  as  more  than  once  declared 
by  this  court,  that  the  general  right  to  contract  in  relation  to  one's 
business  is  part  of  the  liberty  of  the  individual,  protected  by  the 
fourteenth  amendment  to  the  federal  Constitution ;  yet  it  is  equally 
well  settled  that  this  liberty  is  not  absolute  and  extending  to  all 
contracts,  and  that  a  state  may,  without  conflicting  with  the  pro- 
visions of  the  fourteenth  amendment,  restrict  in  many  respects  the 
individual's  power  of  contract.  *  *  *  That  woman's  physical 
structure  and  the  performance  of  maternal  functions  place  her  at 
a  disadavantage  in  the  struggle  for  subsistence  is  obvious.  This  is 
especially  true  when  the  burdens  of  motherhood  are  upon  her. 
Even  when  they  are  not,  by  abundant  testimony  of  the  medical  fra- 
ternity, continuance  for  a  long  time  on  her  feet  at  work,  repeating 
this  from  day  to  day,  tends  to  injurious  effects  upon  the  body,  and, 
as  healthy  mothers  are  essential  to  vigorous  offspring,  the  physical 
well-being  of  woman  becomes  an  object  of  public  interest  and  care 
in  order  to  preserve  the  strength  and  vigor  of  the  race.  Still  again, 
history  discloses  the  fact  that  woman  has  always  been  dependent 
upon  man.  He  established  his  control  at  the  outset  by  superior 
physical  strength,  and  this  control  in  various  forms,  with  diminish- 
ing intensity,  has  continued  to  the  present.  As  minors,  though  not 
to  the  same  extent,  she  has  been  looked  upon  in  the  courts  as  needing 
especial  care  that  her  rights  may  be  preserved.  Education  was  long 
denied  her,  and  while  now  the  doors  of  the  schoolroom  are  opened 
and  her  opportunities  for  acquiring  knowledge  are  great,  yet,  even 
with  that  and  the  consequent  increase  of  capacity  for  business 
affairs,  it  is  still  true  that  in  the  struggle  for  subsistence  she  is 
not  an  equal  competitor  with  her  brother.  Though  limitations  upon 
personal  and  contractual  rights  may  be  removed  by  legislation, 
there  is  that  in  her  disposition  and  habits  of  life  which  will  operate 
against  a  full  assertion  of  those  rights.  She  will  still  be  where 
some  legislation  to  protect  her  seems  necessary  to  secure  a  real 


464  Cases  on  Personal  Property 

equality  of  right.  Doubtless  there  are  individual  exceptions,  and 
there  are  many  respects  in  which  she  has  an  advantage  over  him ; 
but,  looking  at  it  from  the  viewpoint  of  the  effort  to  maintain  an 
independent  position  in  life,  she  is  not  upon  an  equality.  Differ- 
entiated by  these  matters  from  the  other  sex,  she  is  properly  placed 
in  a  class  by  herself,  and  legislation  designed  for  her  protection 
may  be  sustained,  even  when  like  legislation  is  not  necessary  for 
men  and  could  not  be  sustained.  It  is  impossible  to  close  one's 
eyes  to  the  fact  that  she  still  looks  to  her  brother  and  depends  upon 
him.  Even  though  all  restrictions  on  political,  personal,  and  con- 
tractual rights  were  taken  away,  and  she  stood,  so  far  as  statutes 
are  concerned,  upon  an  absolutely  equal  plane  with  him,  it  would 
still  be  true  that  she  is  so  constituted  that  she  will  rest  upon  and 
look  to  him  for  protection  ;  that  her  physical  structure  and  a  proper 
discharge  of  her  maternal  functions — having  in  view  not  merely 
her  own  health,  but  the  well-being  of  the  race— justify  legislation 
to  protect  her  from  the  greed  as  well  as  the  passion  of  man.  The 
limitations  which  this  statute  places  upon  her  contractual  powers, 
upon  her  right  to  agree  with  her  employer  as  to  the  time  she  shall 
labor,  are  not  imposed  solely  for  her  benefit,  but  also  largely  for 
the  benefit  of  all.  Many  words  cannot  make  this  plainer.  The 
two  sexes  differ  in  structure  of  body,  in  the  functions  to  be  per- 
formed by  each,  in  the  amount  of  physical  strength,  in  the  capacity 
for  long-continued  labor,  particularly  when  done  standing,  the 
influence  of  vigorous  health  upon  the  future  well-being  of  the  race, 
the  self-reliance  which  enables  one  to  assert  full  rights,  and  in  the 
capacity  to  maintain  the  struggle  for  subsistence.  This  difference 
justifies  a  difference  in  legislation  and  upholds  that  which  is  designed 
to  compensate  for  some  of  the  burdens  which  rest  upon  her." 

In  the  recent  case  of  Ritchie  &  Co.  v.  Wayman,  244  111.  509,  91 
N.  E.  695,  27  L.  R.  A.  (N.  S.)  994,  the  court  said:  ''The  right  of 
the  individual  to  contract  with  reference  to  labor  is  held  inviolable 
under  the  Constitution  on  the  ground  that  the  privilege  of  con- 
tracting vrith  reference  to  labor  is  a  property  right,  within  the 
purview  of  the  Constitution.  Frorer  v.  People,  141  111.  171,  31 
N.  E.  395,  16  L.  R.  A.  492.  There  inhere  in  the  state,  however, 
certain  sovereign  powers,  among  which  powers  is  that  character- 
ized as  the  police  power,  which,  when  broadly  stated,  is  that 
power  of  the  state  which  relates  to  the  conservation  of  the  health, 
morals,  and  general  welfare  of  the  public,  and  the  property  rights 
of  the  citizen  are  always  held  and  enjoyed  subject  to  the  reasonable 
exercise  of  the  police  power  by  the  state.     If  this  statute  can  be 


How  Property  Ceases  to  Exist  465 

sustained,  it  must  be  sustained,  we  think,  as  an  exercise  of  the 
police  power.  In  City  of  Chicago  v.  Bowman  Dairy  Co.,  234  111. 
294,  297,  84  N.  E.  913,  914  (17  L.  R.  A.  [N.  S.]  684,  123  Am.  St. 
Rep.  100),  it  was  said:  'The  police  power  is  said  to  be  an  attribute 
of  sovereignty,  and  to  exist  without  any  reservation  in  the  Consti- 
tution, and  to  be  founded  upon  the  duty  of  the  state  to  protect 
its  citizens  and  to  provide  for  the  safety  and  good  order  of  society. 
*  *  *  All  rights,  whether  tenable  or  untenable,  are  held  subject 
to  this  police  power.  Northwestern  Fertilizing  Co.  v.  Village  of 
Hyde  Park,  70  111.  634.'  In  City  of  Chicago  v.  Bowman  Dairy  Co., 
supra,  it  was  held  the  regulation  of  the  sale  of  milk  and  cream  in 
bottles  and  glass  jars  by  a  city  was  a  proper  exercise  of  the  police 
power,  and  in  City  of  Chicago  v.  Schmidinger  (243  111.  167, 
90  N.  E.  369),  that  the  bread  ordinances  of  the  city  of  Chicago, 
which  fixed  the  size  of  loaves  and  regulated  the  sale  of  bread,  were 
a  valid  exercise  of  the  police  power.  From  the  examples  above 
referred  to,  found  in  adjudicated  eases,  it  will  be  seen  that  the 
police  power  is  a  very  broad  power,  and  may  be  applied  to  the 
regulation  of  everj^  property  right  so  far  as  it  may  be  reasonably 
necessary  for  the  state  to  exercise  such  power  to  guard  the  health, 
morals,  and  general  welfare  of  the  public.  It  is  known  to  all  men 
(and  what  we  know  as  men  we  cannot  profess  to  be  ignorant  of  as 
judges)  that  woman's  physical  structure  and  the  performance  of 
maternal  functions  place  her  at  a  great  disadvantage  in  the  battle 
of  life ;  that,  while  a  man  can  work  for  more  than  10  hours  a  day 
without  injury  to  himself,  a  woman,  especially  when  the  burdens 
of  motherhood  are  upon  her,  cannot;  that,  while  a  man  can  work 
standing  upon  his  feet  for  more  than  10  hours  a  day,  day  after 
day,  without  injury  to  himself,  a  woman  cannot ;  that  to  require  a 
woman  to  stand  upon  her  feet  for  more  than  10  hours  a  day  and 
perform  severe  manual  labor  while  thus  standing,  day  after  day, 
has  the  effect  to  impair  her  health ;  and  that,  as  weakly  and  sickly 
women  cannot  be  the  mothers  of  vigorous  children,  it  is  of  the 
greatest  importance  to  the  public  that  the  state  take  such  measures 
as  may  be  necessary  to  protect  its  women  from  the  consequences 
induced  by  long  continuous  manual  lalmr  in  those  occupations 
which  tend  to  break  them  down  physically.  It  would  therefore 
seem  obvious  that  legislation  which  limits  the  number  of  hours 
which  women  shall  be  permitted  to  work  to  10  hours  in  a  single 
day  in  such  employments  as  are  carried  on  in  mechanical  estab- 
lishments, factories,  and  laundries  would  tend  to  preserve  the 
health  of  women  and  in.sure  the  production  of  vigorous  offspring 
C.  P.  P.— 30 


466  Cases  on  Personal  Property 

by  them,  and  would  directly  conduce  to  the  health,  morals,  and 
general  welfare  of  the  public,  and  that  such  legislation  would  fall 
clearly  within  the  police  power  of  the  state.  Legislation  limiting 
the  number  of  hours  which  women  shall  work  in  establishments 
similar  to  those  enumerated  in  the  statute  now  under  consideration 
to  a  period  of  not  more  than  10  hours  in  any  one  day  has  been 
sustained  in  Muller  v.  Oregon,  208  U.  S.  412,  28  Sup.  Ct.  324,  52 
L.  Ed.  551 ;  State  v.  Muller,  48  Or.  252,  85  Pae.  855,  120  Am.  St. 
Rep.  805 ;  Wenham  v.  State,  65  Neb.  394,  91  N.  W.  421,  58  L.  R.  A. 
825;  Commonwealth  v.  Hamilton  Mfg.  Co.,  120  Mass.  383;  and 
Wa.shington  v.  Buchanan,  29  Wash.  602,  70  Pac.  52,  59  L.  R.  A. 
342,  92  Am.  St.  Rep.  930." 

The  case  of  Muller  v.  Oregon,  supra,  from  which  we  have  quoted 
at  such  length,  was  cited  with  approval  by  this  court  in  People 
V.  Case,  153  Mich.  98,  116  N.  W.  558,  18  L.  R.  A.  (N.  S.)  657.  For 
an  interesting  discussion  of  one  phase  of  the  police  power,  see 
People  V.  Smith,  108  Mich.  527,  66  N.  W.  382,  32  L.  R.  A.  853,  62 
Am.  St.  Rep.  715. 

We  think  it  clear  that,  according  to  the  great  weight  of  modern 
authority,  the  provisions  of  the  law  are  not  unconstitutional. 

Second,  is  the  law  class  legislation  f    *    *    * 

In  Spurr  v.  Travis,  145  Mich.  721,  108  N.  W.  1090,  116  Am. 
St.  Rep.  330,  the  ''sales  in  bulk  act,"  so  called,  was  attacked  upon 
the  ground  of  being  class  legislation,  and  it  was  there  held  that 
it  was  not  class  legislation,  though  its  operation  was  limited  to 
merchants  and  to  those  merchants  who  owe  no  debts. 

The  case  of  Mt.  Vernon-Woodberry  Cotton  Duck  Co.  v.  Insurance 
Co.,  Ill  Md.  561,  75  Atl.  105,  is  directly  in  point.  In  this  case 
the  statute  forbids  the  employment  of  children  under  12  years 
of  age  in  the  mills  and  factories  of  the  state  ' '  other  than  the  estab- 
lishments for  manufacturing  canned  goods."  It  was  held  that  the 
legislation  was  not  class  legislation. 

In  the  case  of  Ritchie  &  Co.  v.  Wayman,  244  111.  509,  91  N.  E. 
695,  27  L.  R.  A.  (N.  S.)  994,  from  which  we  have  already  quoted, 
it  was  argued  that  the  statute  was  class  legislation.  The  court 
decided  it  was  not  open  to  that  objection.     *    *    * 

*  *  *  We  conclude  the  legislation  is  not  unconstitutional,  and 
that  it  is  not  class  legislation. 

The  decree  of  the  lower  court  is  reversed,  and  one  may  be  entered 
here  dismissing  the  bill  of  complaint,  with  costs  of  both  courts.'* 

4  See  Childs'  Personal  Property,  §327. 


How  Property  Ceases  to  Exist  467 

Compulsory  Vaccination. 
JACOBSON   V.    COMMONWEALTH    OF    MASSACHUSETTS. 
197  U.  S.  11,  25  Sup.  Ct.  Rep.  358,  49  L.  Ed.  643.    1905. 
The  facts  are  stated  in  the  opinion. 

Mr,  Justice  H.irlan. — This  ease  involves  the  validity,  under 
the  Constitution  of  the  United  States,  of  certain  provisions  in  the 
statutes  of  Massachusetts  relating  to  vaccination. 

The  Revised  Laws  of  that  commonwealth,  chap.  75,  §  137,  pro- 
vide that  "the  board  of  health  of  a  city  or  toA^Ti,  if,  in  its  opinion, 
it  is  necessary  for  the  public  health  or  safety,  shall  require  and 
enforce  the  vaccination  and  revaccination  of  all  the  inhabitants 
thereof,  and  shall  provide  them  with  the  means  of  free  vaccination. 
Whoever,  being  over  twenty-one  years  of  age  and  not  under  guar- 
dianship, refuses  or  neglects  to  comply  with  such  requirement  shall 
forfeit  $5." 

An  exception  is  made  in  favor  of  "children  who  present  a  certi- 
ficate, signed  by  a  registered  physician,  that  they  are  unfit  subjects 
for  vaccination,"     §  139. 

Proceeding  under  the  above  statutes,  the  board  of  health  of  the 
city  of  Cambridge,  Massachusetts,  on  the  27th  day  of  February, 
1902,  adopted  the  following  regulation:  "Whereas,  smallpox  has 
been  prevalent  to  some  extent  in  the  city  of  Cambridge,  and  still 
continues  to  increase;. and  whereas,  it  is  necessary  for  the  speedy 
extermination  of  the  disease  that  all  persons  not  protected  by  vac- 
cination should  be  vaccinated;  and  whereas,  in  the  opinion  of  the 
board,  the  public  health  and  safety  require  the  vaccination  or  re- 
vaccination  of  all  the  inhabitants  of  Cambridge;  be  it  ordered,  that 
all  the  inhabitants  of  the  city  who  have  not  been  successfully  vac- 
cinated since  March  1,  1897,  be  vaccinated  or  revaccinated." 

Subsequently,  the  board  adopted  an  additional  regulation  empow- 
ering a  named  physician  to  enforce  the  vaccination  of  persons  as 
directed  by  the  board  at  its  special  meeting  of  February  27th. 

The  above  regulations  being  in  force,  the  plaintiff  in  eiTor, 
Jacobson,  was  proceeded  against  by  a  criminal  complaint  in  one 
of  the  inferior  courts  of  Massachusetts.    *    *    * 

The  defendant,  having  been  arrraignod,  pleaded  not  guilty. 
The  government  put  in  evidence  the  al)ove  regulations  adopted 
by  the  board  of  health,  and  made  proof  tending  to  show  that  ijts 


468  Cases  on  Personal  Property 

chairman  informed  the  defendant  that,  by  refusing  to  be  vacci- 
nated, he  would  incur  the  penalty  provided  by  the  statute,  and 
would  be  prosecuted  therefor;  that  he  offered  to  vaccinate  the 
defendant  without  expense  to  him  j  and  that  the  offer  was  declined, 
and  defendant  refused  to  be  vaccinated, 

*    *     *    A  verdict  of  guilty  was  thereupon  returned. 

The  case  was  then  continued  for  the  opinion  of  the  supreme 
judicial  court  of  Massachusetts.  That  court  overruled  all  the 
defendant's  exceptions,  sustained  the  action  of  the  trial  court,  and 
thereafter,  pursuant  to  the  verdict  of  the  jury,  he  was  sentenced 
by  the  court  to  pay  a  fine  of  $5,  And  the  court  ordered  that  he 
stand  committed  until  the  fine  was  paid.     *     *     * 

The  authority  of  the  state  to  enact  this  statute  is  to  be  referred 
to  what  is  commonly  called  the  police  power, — a  power  which 
the  state  did  not  surrender  when  becoming  a  member  of  the  Union 
under  the  Constitution.  Although  this  court  has  refrained  from 
any  attempt  to  define  the  limits  of  that  power,  yet  it  has  distinctly 
recognized  the  authority  of  a  state  to  enact  quarantine  laws  and 
"health  laws  of  every  description;"  indeed,  all  laws  that  relate  to 
matters  completely  within  its  territory  and  which  do  not  by  their 
necessary  operation  affect  the  people  of  other  states.  According 
to  settled  principles,  the  police  power  of  a  state  must  be  held  to 
embrace,  at  least,  such  reasonable  regulations  established  directly 
by  legislative  enactment  as  will  protect  the  public  health  and  the 
public  safety.    *    *    * 

We  come,  then,  to  inquire  whether  any  right  given  or  secured 
by  the  Constitution  is  invaded  by  the  statute  as  interpreted  by  the 
state  court.  The  defendant  insists  that  his  liberty  is  invaded  w^hen 
the  state  subjects  him  to  fine  or  imprisonment  for  neglecting  or 
refusing  to  submit  to  vaccination;  that  a  compulsory  vaccination 
law  is  unreasonable,  arbitrary,  and  oppressive,  and,  therefore,  hos- 
tile to  the  inherent  right  of  every  freeman  to  care  for  his  own 
body  and  health  in  such  way  as  to  him  seems  best;  and  that  the 
execution  of  such  a  law  against  one  who  objects  to  vaccination,  no 
matter  for  what  reason,  is  nothing  short  of  an  assault  upon  his 
person.  But  the  liberty  secured  by  the  Constitution  of  the  United 
States  to  every  person  within  its  jurisdiction  does  not  import  an 
absolute  right  in  each  person  to  be,  at  all  times  and  in  all  circum- 
stances, wholly  freed  from  restraint.  There  are  manifold  restraints 
to  which  every  person  is  necessarily  subject  for  the  common  good. 
On  any  other  basis  organized  society  could  not  exist  with  safety 
to  its  members.    Society  based  on  the  rule  that  each  one  is  a  law 


How  Property  Ceases  to  Exist  469 

unto  himself  would  soon  be  confronted  with  disorder  and  anarchy. 
Real  liberty  for  all  could  not  exist  under  the  operation  of  a  prin- 
ciple which  recognizes  the  right  of  each  individual  person  to  use 
his  own,  whether  in  respect  of  his  person  or  his  property,  regardless 
of  the  injury  that  may  be  done  to  others.  This  court  has  more 
than  once  recognized  it  as  a  fundamental  principle  that  "persons 
and  property  are  subjected  to  all  kinds  of  restraints  and  burdens 
in  order  to  secure  the  general  comfort,  health,  and  prosperity  of 
the  state;  of  the  perfect  right  of  the  legislature  to  do  which  no 
question  ever  was,  or  upon  acknowledged  general  principles  ever 
can  be,  made,  so  far  as  natural  persons  are  concerned."    *     *     * 

Applying  these  principles  to  the  present  case,  it  is  to  be  observed 
that  the  legislature  of  Massachusetts  required  the  inhabitants  of  a 
city  or  town  to  be  vaccinated  only  when,  in  the  opinion  of  the 
board  of  health,  that  was  necessary  for  the  public  health  or  the 
public  safety.  The  authority  to  determine  for  all  what  ought  to 
be  done  in  such  an  emergency  must  have  been  lodged  somewhere  or 
in  some  body;  and  surely  it  was  appropriate  for  the  legislature 
to  refer  that  question,  in  the  first  instance,  to  a  board  of  health 
composed  of  persons  residing  in  the  locality  affected,  and  appointed, 
presumably,  because  of  their  fitness  to  determine  such  questions. 
To  invest  such  a  body  with  authority  over  such  matters  was  not 
an  unusual,  nor  an  unreasonable  or  arbitrary,  requirement.  Upon 
the  principle  of  self-defense,  of  paramount  necessity,  a  community 
has  the  right  to  protect  itself  against  an  epidemic  of  disease  which 
threatens  the  safety  of  its  members.  It  is  to  be  observed  that 
when  the  regulation  in  question  was  adopted  smallpox,  according 
to  the  recitals  in  the  regulation  adopted  by  the  board  of  health, 
was  prevalent  to  some  extent  in  the  city  of  Cambridge,  and  the 
disease  was  increasing.  If  such  was  the  situation, — and  nothing  is 
asserted  or  appears  in  the  record  to  the  contrary, — if  w'e  are  to 
attach  any  value  whatever  to  the  knowledge  which,  it  is  safe  to  af- 
firm, is  common  to  all  civilized  peoples  touching  smallpox  and  the 
methods  most  usually  employed  to  eradicate  that  disease,  it  cannot 
be  adjudged  that  the  present  regulation  of  the  board  of  health  was 
not  necessary  in  order  to  protect  the  public  health  and  secure  the 
public  safety.     *     *     * 

Looking  at  the  propositions  embodied  in  the  defendant's  rejected 
offers  of  proof,  it  is  clear  that  they  are  more  formidable  by  their 
number  than  by  their  inherent  value.  Those  offers  in  the  main 
seem  to  have  had  no  purpose  except  to  state  the  general  theory  of 
those  of  the  medical  profession  who  attach  little  or  no  value  to 


470  Cases  on  Personal  Property 

vaccination  as  a  means  of  preventing  the  spread  of  smallpox,  or 
Avho  think  that  vaccination  causes  other  diseases  of  the  body.  What 
everybody  knows  the  court  must  know,  and  therefore  the  state  court 
judicially  knew,  as  this  court  knows,  that  an  opposite  theory  accords 
with  the  common  belief,  and  is  maintained  by  high  medical  author- 
ity. "We  must  assume  that,  when  the  statute  in  question  was  passed, 
the  legislature  of  Massachusetts  was  not  unaware  of  these  opposing 
theories,  and  was  compelled,  of  necessity,  to  choose  between  them. 
*  *  *  rpj^g  state  legislature  proceeded  upon  the  theory  which 
recognized  vaccination  as  at  least  an  effective,  if  not  the  best- 
known,  way  in  which  to  meet  and  suppress  the  evils  of  a  smallpox 
epidemic  that  imperiled  an  entire  population.     *    *     * 

Wliatever  may  be  thought  of  the  expediency  of  this  statute,  it 
cannot  be  affirmed  to  be,  beyond  question,  in  palpable  conflict  with 
the  Constitution.  Nor,  in  view  of  the  methods  employed  to  stamp 
out  the  disease  of  smallpox,  can  anyone  confidently  assert  that  the 
means  prescribed  by  the  state  to  that  end  have  no  real  or  substantial 
relation  to  the  protection  of  the  public  health  and  the  public  safety. 
Such  an  assertion  would  not  be  consistent  with  the  experience  of 
this  and  other  countries  whose  authorities  have  dealt  with  the  disease 
of  smallpox.  And  the  principle  of  vaccination  as  a  means  to  prevent 
the  spread  of  smallpox  has  been  enforced  in  many  states  by  statutes 
making  the  vaccination  of  children  a  condition  of  their  right  to 
enter  or  remain  in  public  schools.  Blue  v.  Beach,  155  Ind.  121,  50 
L.  R.  A.  64,  80  Am.  St.  Rep.  195,  56  N.  E.  89 ;  Morris  v.  Columbus, 
102  Ga.  792,  42  L.  R.  A.  175,  66  Am.  St.  Rep.  243,  30  S.  E.  850 ; 
State  V.  Hay,  126  N.  C.  999,  49  L.  R.  A.  588,  78  Am.  St.  Rep.  691, 
35  S.  E.  459 ;  Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  383 ;  Bissell  v. 
Davison,  65  Conn.  183,  29  L.  R.  A.  251,  32  Atl.  348;  Hazen  v. 
Strong,  2  Vt.  427 ;  Duffield  v.  Williamsport  School  District,  162  Pa. 
476,  25  L.  R.  A.  152,  29  Atl.  742. 

The  latest  case  upon  the  subject  of  which  we  are  aware  is  Vie- 
mester  v.  White,  decided  very  recently  by  the  court  of  appeals  of 
New  York.  That  case  involved  the  validity  of  a  statute  excluding 
from  the  public  schools  all  children  who  had  not  been  vaccinated. 
One  contention  was  that  the  statute  and  the  regulation  adopted  in 
exercise  of  its  provisions  was  inconsistent  with  the  rights,  privileges, 
and  liberties  of  the  citizen.  The  contention  was  overruled,  the  court 
saying,  among  other  things:  "Smallpox  is  known  of  all  to  be  a 
dangerous  and  contagious  disease.  If  vaccination  strongly  tends 
to  prevent  the  transmission  or  spread  of  this  disease,  it  logically 
follows  that  children  may  be  refused  admission  to  the  public  schools 


How  Property  Ceases  to  Exist  471 

until  they  have  been  vaccinated.  *  *  *  Nearly  every  state  in  the 
Union  has  statutes  to  encourage,  or  directly  or  indirectly  to  require, 
vaccination;  and  this  is  true  of  most  nations  of  Europe.  *  *  * 
A  common  belief,  like  common  knowledge,  does  not  require  evidence 
to  establish  its  existence,  but  may  be  acted  upon  without  proof  by 
the  legislature  and  the  courts.  *  *  * "  The  fact  that  the  belief 
is  not  universal  is  not  controlling,  for  there  is  scarcely  any  belief 
that  is  accepted  by  everyone.  The  possibility  that  the  belief  may 
be  wrong,  and  that  science  may  yet  show  it  to  be  wrong,  is  not  con- 
clusive ;  for  the  legislature  has  the  right  to  pass  laws  which,  accord- 
ing to  the  common  belief  of  the  people,  are  adapted  to  prevent 
the  spread  of  contagious  diseases.  In  a  free  country,  where  the 
government  is  by  the  people,  through  their  chosen  representatives, 
practical  legislation  admits  of  no  other  standard  of  action,  for 
what  the  people  believe  is  for  the  common  welfare  must  be  accepted 
as  tending  to  promote  the  common  welfare,  whether  it  does  in  fact 
or  not.  Any  other  basis  would  conflict  with  the  spirit  of  the  Con- 
stitution, and  would  sanction  measures  opposed  to  a  Republican 
form  of  government.  While  we  do  not  decide,  and  cannot  decide, 
that  vaccination  is  a  preventive  of  smallpox,  we  take  judicial  notice 
of  the  fact  that  this  is  the  common  belief  of  th£  people  of  the  state, 
and,  with  this  fact  as  a  foundation,  we  hold  that  the  statute  in 
question  is  a  health  law,  enacted  in  a  reasonable  and  proper  exercise 
of  the  police  power."    179  N.  Y.  235,  72  N.  E.  97. 

Since,  then,  vaccination,  as  a  means  of  protecting  a  community 
against  smallpox,  finds  strong  support  in  the  experience  of  this 
and  other  countries,  no  court,  much  less  a  jury,  is  justified  in  dis- 
regarding the  action  of  the  legislature  simply  because  in  its  or  their 
opinion  that  particular  method  was — perhaps,  or  possibly — not  the 
best  either  for  children  or  adults.     *     *     * 

Before  closing  this  opinion  we  deem  it  appropriate,  in  order  to 
prevent  misapprehension  as  to  our  views,  to  observe — perhaps  to 
repeat  a  thought  already  sufficiently  expressed,  namely — that  the 
police  power  of  a  state,  whether  exercised  directly  by  the  legisla- 
ture, or  by  a  local  body  acting  under  its  authority,  may  be  exerted 
in  such  circumstances,  or  by  regulations  so  arbitrary  and  oppressive 
in  particular  cases,  as  to  justify  the  interference  of  the  courts  to 
prevent  wrong  and  oppression.  Extreme  cases  can  be  readily  sug- 
gested. Ordinarily  such  cases  are  not  safe  guides  in  the  adminis- 
tration of  the  law.  It  is  easy,  for  instance,  to  suppose  the  case 
of  an  adult  who  is  embraced  by  the  mere  words  of  the  act,  but  yet 
to  subject  whom  to  vaccination  in  a  particular  condition  of  his 


472  Cases  on  Personal  Property 

health  or  body  would  be  cruel  and  inhuman  in  the  last  degree. 
We  are  not  to  be  understood  as  holding  that  the  statute  was  intended 
to  be  applied  in  such  a  case,  or,  if  it  was  so  intended,  that  the 
judiciary  would  not  be  competent  to  interfere  and  protect  the  health 
and  life  of  the  individual  concerned.  *  *  *  Until  otherwise 
informed  by  the  highest  court  of  Massachusetts,  we  are  not  inclined 
to  hold  that  the  statute  establishes  the  absolute  rule  that  an  adult 
must  be  vaccinated  if  it  be  apparent  or  can  be  shown  with  reasonable 
certainty  that  he  is  not  at  the  time  a  fit  subject  of  vaccination,  or 
that  vaccination,  by  reason  of  his  then  condition,  would  seriously 
impair  his  health,  or  probably  cause  his  death.  No  such  case  is 
here  presented.  It  is  the  cause  of  an  adult  who,  for  aught  that 
appears,  was  himself  in  perfect  health  and  a  fit  subject  of  vacci- 
nation, and  yet,  while  remaining  in  the  community,  refused  to  obey 
the  statute  and  the  regulation  adopted  in  execution  of  its  pro- 
visions for  the  protection  of  the  public  health  and  the  public  safety, 
confessedly  endangered  by  the  presence  of  a  dangerous  disease. 

We  now  decide  only  that  the  statute  covers  the  present  case,  and 
that  nothing  clearly  appears  that  would  justify  this  court  in  hold- 
ing it  to  be  unconstitutional  and  inoperative  in  its  application 
to  the  plaintiff  in  error. 

The  judgment  of  the  court  below  must  be  affirmed. 

It  is  so  ordered. 

Mr.  Justice  Brewer  and  Mr.  Justice  Peckham  dissent. 


Speed  of  Automobiles. 
COMMONWEALTH  v.  KINGSBURY. 

199  Mass.  542,  85  N.  E.  848.     1908. 

The  facts  are  stated  in  the  opinion. 

Knowlton,  C.  J. — The  defendant  was  convicted  of  having  oper- 
ated an  automobile  in  violation  of  law,  over  a  highway  legally  laid 
out  in  the  town  of  Ashfield,  from  which  automobiles  were  excluded 
under  the  authority  of  the  statutes.  He  took  exception  to  the 
refusal  of  the  court  to  make  certain  rulings  requested,  which,  in 
a  variety  of  forms,  raised  the  question  whether  St.  1905,  p.  289, 


How  Property  Ceases  to  Exist  473 

e.  366,  §  1,  as  amended  by  St.  1906,  p.  425,  e.  412,  §  9,  and  St.  1907, 
p.  153,  c.  203,  were  constitutional.     *     *     * 

Automobiles  are  vehicles  of  great  speed  and  power,  whose  appear- 
ance is  frightful  to  most  horses  that  are  unaccustomed  to  them. 
The  use  of  them  introduces  a  new  element  of  danger  to  ordinary 
travelers  on  the  highways,  as  well  as  to  those  riding  in  the  auto- 
mobiles. In  order  to  protect  the  public  great  care  should  be  exer- 
cised in  the  use  of  them.  Statutory  regulations  of  their  speed 
while  running  on  the  highways  is  reasonable  and  proper  for  the 
promotion  of  the  safety  of  the  public.  It  is  the  duty  of  the  Legis- 
lature, in  the  exercise  of  the  police  power,  to  consider  the  risks 
that  arise  from  the  use  of  new  inventions  applying  the  forces  of 
nature  in  previously  unknown  ways.  The  general  principle  is  too 
familiar  to  need  discussion.  It  has  been  applied  to  automobiles 
in  different  states  with  the  approval  of  the  courts.  Com.  v.  Boyd, 
188  Mass.  79,  74  N.  E.  255,  108  Am.  St.  Rep.  464;  Christy  v.  El- 
liott, 216  111.  31,  74  N.  E.  1035,  1  L.  R.  A.  (N.  S.)  215,  108  Am. 
St.  Rep.  196;  People  v.  Schneider,  139  Mich.  673,  103  N.  W.  172,  69 
L.  R.  A.  345;  People  v.  MacWilliams  (Sup.),  86  N.  Y.  Supp.  357. 

It  seems  too  plain  for  discussion  that,  with  a  view  to  the  safety 
of  the  public,  the  Legislature  may  pass  laws  regulating  the  speed 
of  such  machines  when  running  upon  highways.  The  same  prin- 
ciple is  applicable  to  a  determination  by  the  Legislature  that  there 
are  some  streets  and  ways  on  which  such  machines  should  not  be 
allowed  at  all.  In  some  parts  of  the  state,  where  there  is  but  little 
travel,  public  necessity  and  convenience  have  required  the  construc- 
tion of  ways  which  are  steep  and  narrow,  over  which  it  might  be 
difficult  to  run  an  automobile,  and  where  it  would  be  very  danger- 
ous for  the  occupants  if  automobiles  were  used  upon  them.  In 
such  places  it  might  be  much  more  dangerous  for  travelers  with 
horses  and  with  vehicles  of  other  kinds  if  automobiles  were  allowed 
there.  No  one  has  a  right  to  use  the  streets  and  public  places 
as  he  chooses,  without  regard  to  the  safety  of  other  persons  who 
are  rightly  there.  In  choosing  his  vehicle,  every  one  must  consider 
whether  it  is  of  a  kind  which  will  put  in  peril  those  using  the  streets 
differently  in  a  reasonable  way.  In  parks  and  cemeteries  and  private 
grounds,  where  narrow  roads  with  precipitous  banks  are  sometimes 
constructed  for  carriages  drawn  by  horses,  it  has  been  a  common 
practice  to  exclude  automobiles  altogether,  chiefly  because  of  the 
danger  of  their  frightening  horses. 

The  general  principle  referred  to  was  applied  long  ago  to  a  dif- 
ferent kind  of  vehicle,  in  Com.  v.  Stodder,  2  Cush.  562,  48  Am.  Dec. 


474  Cases  on  Personal  Property 

679,  a  case  which  relates  to  an  ordinance  of  the  city  of  Boston, 
prescribing  the  streets  on  which  certain  omnibuses  might  be  run 
and  excluding  them  from  other  streets.  A  part  of  the  opin- 
ion is  as  follows:  "AVe  perceive  nothing  objectionable  in  an 
ordinance  by  the  mayor  and  aldermen,  providing  for  the  safety 
and  convenience  of  the  public  generally,  by  prescribing  by  a 
general  law  or  ordinance  certain  streets  or  portions  of  streets 
to  be  used  for  travel  by  vehicles  exposing,  by  their  manner  of 
use,  the  lives  and  limbs  of  the  public  generally  who  may  have 
occasion  to  use  the  public  streets  indiscriminately;  and  such 
regulations  and  restrictions  might  be  warranted,  even  to  effect 
the  minor  object,  that  of  preventing  and  greatly  obstructing  the 
free  and  convenient  use  of  the  streets  for  general  purposes,  by 
interdicting  carriages  of  unusual  size,  or  drawn  by  an  unusual 
number  of  animals,  or  those  of  such  character  as  would  greatly 
interfere  with  the  public  convenience  and  safety.  To  take  a  strong 
case :  Suppose  the  proprietor  of  the  omnibuses  from  Roxbury  should 
deem  it  expedient  to  propel  his  carriages  by  steam  power,  passing 
through  Washington  street  at  a  rapid  rate,  would  it  not  be  a  lawful 
and  proper  regulation  for  the  mayor  and  aldermen  to  prohibit  the 
using  of  Washington  street  by  vehicles  propelled  by  steam  power? 
We  cannot  doubt  that  it  would  be." 

The  right  of  the  Legislature,  acting  under  the  police  power,  to 
prescribe  that  automobiles  shall  not  pass  over  certain  streets  or 
public  ways  in  a  city  or  town,  seems  to  us  well  established  both 
upon  principle  and  authority.     *     *     * 

Exceptions  overruled.^ 


Licensing  of  Barbers. 


TEMPLAR  V.  MICHIGAN  STATE  BOARD  OF  EXAMINERS 

OF  BARBERS. 

131  Mich .  254,  90  N.  W.  1058.     1902. 

[The  relator,  Arthur  G.  Templar,  brought  mandamus  pro- 
ceedings against  the  state  board  of  examiners  of  barbers  to  compel 
them  to  allow  him  to  take  the  examination  required  by  law,  relative 
to  his  fitness  to  engage  in  his  trade.] 

5  See  Childs'  Personal  Property,  §§  116,  327. 


How  Property  Ceases  to  Exist  475 

The  facts  are  stated  in  the  opinion. 

Montgomery,  J.— Act  No.  212  of  the  Public  Acts  of  1899  pro- 
vides for  the  examination  and  licensing  of  barbers.  Section  5 
provides  for  an  examination  of  an  applicant  concerning  his  ability 
to  prepare  and  fit  for  use  tools  and  utensils  used  by  barbers,  includ- 
ing the  proper  antiseptic  treatment  of  razors,  etc.,  *  *  *  and 
further  provides  that  no  person  so  examined  shall  receive  such 
certificate  who  at  the  time  of  such  examination  is  an  alien.  The 
relator  applied  to  the  defendant  board  to  take  the  examination 
required  by  law,  setting  up  that  he  is  a  resident  of  the  city  of 
Detroit;  that  he  was  born  in  Canada,  and  follows  the  trade  of  a 
barber  as  a  means  of  livelihood ;  and  that  he  has  declared  his  inten- 
tion of  becoming  a  citizen  of  the  United  States.  The  board  refused 
to  receive  the  application  upon  the  ground  that  he  was  an  alien. 
The  question  presented  is  whether  the  provision  of  the  act  which 
requires  an  applicant  to  be  a  citizen  of  the  United  States  is  valid. 
The  relator  contends  that  this  provision  is  invalid,  for  the  reason 
that  it  violates  the  provisions  of  the  fourteenth  amendment  of  the 
constitution  of  the  United  States,  which  declares  that  no  state  shall 
deprive  any  person  of  life,  liberty,  or  property  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws. 

*  *  *  Speaking  generally,  Mr.  Tiedeman,  in  his  work  on 
State  and  Federal  Control  of  Persons  and  Property,  at  page  331, 
says:  "States  have,  by  legislation,  undertaken  to  protect  native 
labor  against  alien  labor ;  but  in  each  case  the  legislation  has  been 
declared  to  be  an  invasion  of  the  jurisdiction  of  the  United  States 
government,  and  an  unconstitutional  interference  with  the  rights  of 
resident  aliens." 

The  attorney  general  contends  that  under  the  police  power  the 
legislature  may  regulate  callings,  trades,  and  professions,  and  that 
it  is  not  for  the  courts  to  pass  upon  the  wisdom  of  their  regulations, 
and  that,  if  such  regulations  result  in  excluding  aliens  from  the 
privileges  which  citizens  enjoy,  it  still  should  be  held  within  the 
power  of  the  legislature.  Attention  is  directed  to  the  cases  of  People 
V.  Moorman,  86  Mich.  433,  49  N.  W.  263 ;  Same  v.  Phippin,  70  Mich. 
6,  37  N.  W.  888,  and  Metcalfe  v.  State  Board,  123  Mich.  661,  82 
N.  W.  512.  The  language  in  People  v.  Moorman  is  cited  as  sustain- 
ing the  position  of  the  attorney  general.  ]\Ir.  Justice  Morse,  refer- 
ring to  the  case  of  People  v.  Phippin,  declares  in  People  v.  Moorman 
that  "in  that  case  it  was  substantially  held  that  no  person,  no  mat- 


476  Cases  on  Personal  Property 

ter  how  long  he  had  been  in  the  practice  of  his  profession,  had  a 
vested  right  to  practice  medicine  in  Michigan."    We  do  not  hesi- 
tate to  reiterate  that  doctrine.    We  think  it  must  be  considered  as 
settled  that  in  the  protection  of  the  public  health  the  legislature  has 
the  right  to  provide  for  an  examination  of  all  persons  who  seek  to 
engage  in  the  practice  of  medicine,  and  to  have  their  qualifications 
passed  upon  by  a  properly  constituted  board.     But  the  practice  of 
medicine  is  no  more  an  incident  of  citizenship  than  the  practice  of 
the  trade  of  a  barber.    All  persons  are  entitled  to  enjoy  the  equal 
protection  of  the  law,  and  while  it  may  be  competent  for  the  legis- 
lature, in  the  exercise  of  its  police  powers,  to  provide  for  an  exam- 
ination and  licensing  of  barbers,  as  was  held  in  State  v,  Zeno,  79 
Minn.  80,  81  N.  W.  748,  48  L.  R.  A.  88,  79  Am.  St.  Rep.  422,  and 
Ex  parte  Lucas,  160  Mo.  218,  61  S.  W.  218,  would  it  be  contended 
that  the  legislature  might  provide  that  only  white  persons  should 
be  licensed  ?    The  learned  attorney  general,  in  his  brief,  makes  this 
statement  of  the  true  rule:  "When  legislation  applies  to  particular 
bodies  or  associations,  imposing  upon  them   additional  liabilities 
and  restrictions,  under  the  police  power  of  the  state,  which  are  not 
purely  arbitrary,   the  law  does  not  violate  the  equal  protection 
clause  of  section  1  of  the  fourteenth  amendment  to  the  federal  con- 
stitution, if  all  persons  brought  under  its  influence  are  treated  alike, 
under  the  same  conditions  and  circumstances."    We  discover  noth- 
ing faulty  in  this  statement  of  the  rule.    But  the  difficulty  with  this 
enactment  is  that  all  persons  brought  under  the  influence  of  this 
legislation  are  not  treated  alike,  under  the  same  conditions  and 
circumstances.     Before  the  enactment  of  this  statute  the  plaintiff 
had  the  undoubted  right  to  ply  his  trade  in  Michigan.    In  the  exer- 
cise of  the  police  power,  the  legislature  had  the  undoubted  right 
to  require,  as  a  prerequisite  to  his  plying  his  trade,  that  he  submit 
to  an  examination.     But  had  it  the  right  to  require  citizenship? 
If  it  had  the  right  to  couple  that  with  other  requirements,  it  would 
have  the  same  right  to  make  that  the  only  requirement.     In  other 
words,  it  would  have  the  right  to  exclude  alien  labor  wholly.    We 
think  the  cases  cited  demonstrate  that  it  had  not  this  power.     A 
very  different  question  is  presented  than  in  a  case  of  the  require- 
ment for  admission  to  the  bar,  for  example,  as  in  such  case  the 
statute  confers  upon  the  applicant  who  is  admitted  to  the  profession 
an  office.    He  becomes  an  officer  of  the  court.    So,  too,  a  different 
question  is  presented  than  was  before  the  court  in  Trageser  v.  Gray, 
73  Md.  250,  20  Atl.  905,  9  L.  R  .A.  780,  25  Am.  St.  Rep.  587,— a  case 
much  relied  upon  by  the  attorney  general.    In  that  case  the  ques- 


flow  Property  Ceases  to  Exist  477 

tion  presented  was  whether  aliens  could  be  excluded  from  engaging 
in  the  business  of  retailing  liquors.  This  is  a  business  peculiar  to 
itself,  which  might  be  wholl}'  prohibited  by  the  legislature,  and 
licenses  might  be  confined  to  a  limited  number.  We  need  not, 
therefore,  inquire  whether  such  legislation  is  an  infraction  of  the 
rights  of  the  individual,  not  a  citizen.  But  in  the  present  case  the 
relator's  business  is  in  no  way  injurious  to  the  morals,  the  health, 
or  even  the  convenience  of  the  community,  provided  only  he  has 
the  requisite  knowledge  upon  the  subjects  prescribed  by  the  legis- 
lature to  practice  his  calling  without  endangering  the  health  of 
his  patrons.  To  hold  that  he  is  not  entitled  to  practice  this  calling, 
because  not  a  full  citizen  of  the  United  States,  is  to  deny  to  him 
rights  which  we  think  are  preserved  by  the  fourteenth  amendment. 
It  is  not  contended  that  the  elimination  of  this  provision  will  defeat 
the  purposes  of  the  law  wholly,  but  it  is  very  properly  assumed 
by  both  sides  that  the  statute  may  still  be  operative,  with  this  pro- 
vision eliminated,  if  otherwise  valid. 

The  writ  of  mandamus  will  issue  as  prayed. 

Long,  J.,  did  not  sit.    The  other  justices  concurred.*^ 


Lost  Property. 

Nature  of. 

SOVERN  V.  YORAN. 

16  Oreg.  269,  20  Pac.  100,  8  Am.  St.  293.     1888. 

Trover  for  the  conversion  of  two  packages  of  money. 

The  facts  are  stated  in  the  opinion. 

Lord,  C.  J. — This  was  an  action  of  trover  brought  by  the  plain- 
tiff, as  admini-strator,  against  the  defendant,   for  the  conversion 

8  The  prohibition  by  a  state  of  the  manufacture  and  sale  of  cigarettes  is  a 
legitimate  exercise  of  the  police  power.  Austin  v.  State  of  Tennessee,  179 
U.  S.  343,  21  Sup.  Ct.  Rep.  132,  45  L.  Ed.  224. 

Requiring  tenement  houses  to  have  a  supply  of  water  on  each  floor  is  a  valid 
exercise  of  the  police  power.  Health  Dept.  of  City  of  New  York  v.  Rector,  etc., 
145  N.  Y.  32,  39  N.  E.  833.  27  L.  R.  A.  710. 

An  ordinance  regulating  the  manufacture  and  sale  of  bread  is  a  valid  exercise 
of  the  police  power.  People  v.  Wagner  et  al.,  86  Mich.  594,  49  N.  W.  609,  13 
L.  R.  A.  286. 

An  ordinance  prohibiting  the  "brokerage"  of  theater  tickets  at  an  advanced 
price  is  not  a  valid  exercise  of  the  police  power.  People  v.  Steele,  231  111.  340, 
83  N.  E.  236,  14  L.  E.  A.  (N.  S.)  361. 


478  Cases  on  Personal  Property 

of  two  certain  packages  of  money,  alleged  to  have  been  the  property 
of  the  deceased.  After  denying  the  facts  thus  alleged,  the  defendant 
set  up  as  a  defense,  in  substance,  these  facts:  That  at  the  time 
alleged,  upon  the  premises  owned  and  occupied  by  the  defendant, 
one  Hugh  Gray  and  Darwin  E.  Yoran  each  found  a  purse  of  money, 
and  that  they  delivered  said  packages  to  the  defendant,  to  be  dis- 
posed of  according  to  law,  and  subject  to  their  claim  as  such  finders ; 
that  the  defendant,  as  such  holder  of  the  money,  in  compliance 
with  the  statutes  in  such  case,  did  give  the  required  notice  to  the 
clerk  of  the  county,  by  posting  in  two  public  places,  and  by  pub- 
lication in  the  Oregon  State  Journal,  etc. ;  that  no  owners  appeared 
within  one  year  from  the  date  of  said  notice,  and  claimed  said  sums 
of  money,  and  that  before  any  notice  was  given  to  the  defendant 
of  any  claim  to  the  same,  and  before  the  commencement  of  this 
action,  in  compliance  with  the  statutes  aforesaid,  he  did  deliver 
to  the  county  treasurer  one-half  of  said  money,  and  to  the  said 
Gray  and  Yoran  the  other  half;  that  said  sums  of  money  were 
delivered  to  the  defendant  as  bailee  of  said  finders,  and  that  he 
delivered  that  portion  to  which  each  was  entitled,  and  paid  over 
to  the  trea.surer  the  respective  sums  as  aforesaid,  etc.     *     *     * 

By  the  evidence  in  the  bill  of  exceptions  it  appears  that  the  money 
in  controversy  was  found  in  two  cans  under  the  floor  in  the  barn, 
and  that  the  finders  were  two  boys,  who  thus  substantially  describe 
the  circumstances  of  the  finding.  One  of  them  testifies:  "There 
was  one  plank  that  was  not  nailed  down,  and  had  a  small  hole  in  it 
as  though  the  rats  had  gnawed  it.  It  was  about  two  feet  long. 
When  that  piece  of  flooring  was  lifted  up,  Hugh  Gray  found  the 
can  of  money.  We  counted  it,  and  there  was  $925.85  in  gold  and 
silver.  Afterwards  I  found  another  can,  about  a  half  foot  from 
the  one  Hugh  Gray  found ;  seemed  to  be  a  yeast  powder  can.  It 
was  about  five  inches  long,  and  had  in  it  $1,000  in  gold  coin.  I  took 
the  money  to  my  father  and  handed  it  to  him."  After  inquiring 
of  the  boys  where  they  had  found  the  money,  etc.,  the  defendant 
testified:  ''I  took  it,  and  brought  it  to  the  county  treasurer,  and 
related  to  him  the  circumstances,  and  he  placed  it  in  his  safe. 
Then  I  returned  home. "    *    *    * 

The  court  instructed  the  jury,  among  other  things,  that  "if  the 
defendant  was  proceeding  honestly,  under  the  supposition  that  the 
money  was  lost  property,  it  would  not  of  itself  constitute  conver- 
sion, although  he  was  mistaken  about  the  facts  of  the  money  being 
lost,  and  in  his  attempt  to  proceed  in  reference  to  the  law  of  lost 


How  Property  Ceases  to  Exist  479 

money;"  to  whicli  the  plaintiff  excepted.    The  jury  returned  a  ver- 
dict in  favor  of  the  defendant. 

From  this  statement  it  is  sufficient  to  say  that  the  contention  of 
counsel  for  the  plaintiff  was  that  the  answer  of  the  defendants, 
and  the  evidence  offered  by  him,  established,  in  law,  conversion, 
and  that  the  court  should  have  instructed  the  jury  to  that  effect, 
and  not  as  above  stated.  They  proceeded  upon  the  hypothesis  that 
the  money  was  not  lost,  but  intentionally  deposited  in  the  place 
mentioned  for  safe-keeping,  and  that  the  admitted  acts  of  the 
defendant  in  relation  thereto  were  inconsistent  with  the  rights  of 
the  true  owner,  and  in  law  constituted  a'  conversion.  Ever  since 
the  decision  of  Lord  Chief  Justice  Pratt  in  Armory  v.  Delamirie,  1 
Strange  504,  it  seems  to  be  settled  law  thatthe  finder  of  lost 
money  has  a  valid  claim  to  the  same  against  all  the  world  except 
the  true  owner,  and  generally  it  may  be  said  that  the  place  in 
whichTitls  f  ound_creat^  no  exception  to  this  rule.  * '  But  property, ' ' 
said  Trunkey,  J.,  "is  not  lost  in  the  sense  of  the  rule  if  it  was  in- 
tentionally laid  on  a  table,  counter,  ^r  other  place  by  the  owner,  who 
forgot  to  take  it  away,  and  in  such  case  the  proprietor  of  the  prem- 
ises is  entitled  to  retain  the  custody.  Whenever  the  surroundings 
evidence  that  the  article  was  deposited  in  itsjplace,  the  finder  has^ 
'nn  right  ot  possession"against  the  owner  of  the  building.' '  Hamaker 
vTBlanchard,  90  Pa.  St.  379. 

Strictly  speaking,  it  may  be  said  that,  before  a  thing  can  be 
found,  it  must  have  been  lost ;  and  property  which  the  owner  has 
simply  or  intentionally  laid  down  or  deposited  in  some  place,  and 
for  the  time  forgotten  where  it  was  left  or  put,  in  legal  intend- 
ment, can  hardly  be  considered  as  lost.  "The  loss  of  goods,  in 
legal  or  common  intendment,"  said  Reese,  J.,  "depends  upon  some- 
thing more  than  the  knowledge  or  ignorance,  the  memory  or  want 
of  memory,  of  the  owner,  as  to  their  locality  at  any  given  moment. 
If  I  place  my  watch  or  pocketbook  under  my  pillow  in  a  bedcham- 
ber, or  upon  a  table  or  bureau,  I  may  leave  them  behind  me,  indeed, 
but,  if  that  be  all,  I  cannot  be  said  with  propriety  to  have  lost 
them.  To  lose  is  not  to  place  or  put  anything  carefully  and  volun- 
tarily in  the  place  you  intend,  and  then  forget  it.  It  is  casually 
and  involuntarily  to  part  from  the  possession;  and  the  thing  is 
then  usually  found  in  a  place  or  under  circumstances  to  prove  to 
the  finder  that  the  owner's  will  was  not  employed  in  placing  it 
there."    Lawrence  v.  State,  1  Humph.  229, 

The  distinction  is  to  be  noted  between  the  cases  in  which  the  thing 
or  property  is  actually  lost  and  those  in  which  it  is  intentionally 


480  Cases  on  Personal  Property 

left  or  deposited  in  its  place, — eases  in  which,  as  Baron  Parke 
said,  "the  taker  is  not  justified  in  concluding  that  the  goods  were 
lost,  because  there  is  little  doubt  he  must  have  believed  that  the 
owner  would  know  where  to  find  them  again,  and  he  had  no  pre- 
tense to  consider  them  abandoned  or  derelict."  Reg.  v.  Thurborn, 
1  Denison,  Cr.  Cas.  395. 

Upon  the  theory  that  the  case  in  hand  is  parallel  in  principle 
with  the  class  last  named,  it  may  be  argued  that  the  defendant, 
being  the  owner  of  the  property  in  which  the  money  was  deposited, 
was  entitled  to  the  possession  as  against  the  finders,  and  their  deliv- 
ery to  him  did  not  make  him  in  law  bailee  for  them,  but  required 
him,  as  was  said  in  McAvoy  v.  Medina,  11  Allen  548,  "to  use  rea- 
sonable care  for  the  safe-keeping  of  the  same  until  the  owner  shall 
call  for  it, ' '  and  that  when  he  undertook  to  treat  it  as  lost  property, 
and  actually  delivered  one-half  of  the  money  to  the  county  treasurer 
a^nd  the  other  half  to  the  finders,  he  acted  in  derogation  _of_the 
rights  of  the  true  owner,  by  the  exercise  of  dominion  over  it,  which 
rendered  him  answerable  in  trover  for  conversion. 

At  common  law  the  finder  of  lost  property  was  bound  to  hold  it 
for^the  true  owner7  and  was^Tiabie  for~misdelivery.  In  isaacls  v. 
T:Tafk7"2" BulstrSOgTLord  Coke  says:  "When  a  man  doth  find 
goods,  it  hath  been  said,  and  so  commonly  held,  that,  if  he  doth 
dispossess  himself  of  them,  by  this  he  shall  be  discharged ;  but  this 
is  not  so,  as  appears  by  12  E.  4th,  fol.  13,  for  he  which  finds  goods 
is  bound  to  answer  him  for  them  who  hath  the  property ;  and  if  he 
deliver  them  over  to  any  one,  unless  it  be  unto  the  right  owner,  he 
shall  be  charged  for  them,  for  at  the  first  it  is  in  his  election  whether 
he  will  take  them  or  not  into  his  custody,  but,  when  he  hath  them, 
one  only  hath  the  right  unto  them,  and  therefore  he  ought  to  keep 
them  safely.  If  a  man,  therefore,  which  finds  goods,  if  he  be  wise, 
he  will  then  search  out  the  right  owner  of  them,  and  so  deliver  them 
unto  him.  If  the  owner  comes  unto  him,  and  demands  them,  and  he 
answers  him  that  it  is  not  known  unto  him  w^hether  he  be  the  true 
owner  of  the  goods  or  not,  and  for  this  cause  he  refuseth  to  deliver 
them,  this  refusal  is  no  conversion,  is  he  do  keep  them  for  him. " 

The  duty  of  the  finder  to  ascertain  who  is  the  true  owner  before 
he  makes  a  delivery,  and  his  liability  in  case  of  misdelivery,  is  here 
clearly  stated.  But  our  statute,  as  we  shall  presently  see,  has  iimo- 
vated  this  rule,  and  the  finder,  atter  doing  the  Thmgs"  prescrHied 
.for  the  purpose  of  ascertaining  the  true  owner,  is  required,  after 
the  expiration  of  a  year,  to  turn  over  one-half  to  the  county,_and 
^entitledTto^keep  the  other  half  of  such  lost  property,  and,  in  case 


How  Property  Ceases  to  Exist  481 

of  neglect  or  failure  to  do  so,  tKe  county  may  bring  an  action  against 
such  finder  to  recover  the  same.  So  that,  if  the  owner  should  after- 
wards appear,  such  acts  upon  the  part  o?  the  finder,  done  in  pur- 
suance of  law,  would  not  render  him  liable  for  conversion.  Nor  at 
common  law,  "if  the  owner  comes  unto  him  and  demands  them," 
and  he  does  not  know  him,  and  for  this  reason  refuses  to  deliver  such 
lost  property  to  him,  is  his  refusal  a  conversion.  In  such  case, 
acting  in  good  faith  and  with  fairness,  his  mistake  cannot  be  urged 
against  him,  and  will  not  render  him  liable  in  trover. 

In  some  important  particulars  the  facts  in  the  case  in  hand  are 
more  akin  to  what  is  known  as  ' '  treasure  trove  ; ' '  that  is,  ' '  where 
any  money  is  found  hid  in  the  earth,  but  not  lying  on  the  ground, 
and  no  man  knows  to  whom  it  belongs."  Now,  the  surrounding 
facts  indicate  that  the  money  was  intentionally  deposited  in  the 
place  where  found  for  concealment.  Until  after  the  money  was 
distributed  as  stated,  the  owner  was  unknown.  So  that  during 
the  possession  of  the  defendant  there  was  present  all  the  elements 
constituting  treasure  trove.  There  was  the  hiding,  the  secrecy,  that 
unknown  owner, — in  fact,  dead  owner, — and  unknown  representa- 
tives. It  is  only  when  the  owner  appears,  or  is  shown,  that  the 
title  of  the  king  vanishes  as  heir  to  him  who  was  presumed  to  be 
dead, — in  a  word,  when  the  owner  is  made  known,— it  ceases  to  be 
treasure  trove.  But  while  that  fact  lies  hid,  while  the  case  stands 
of  money  found  hid  in  the  earth,  and  the  owner  unknown,  after 
diligent  search,  and  the  finder  treats  the  property  as  treasure  trove, 
and  then  afterwards  the  owner  appears,  the  only  effect  is  to  destroy 
the  character  of  such  property  as  treasure  trove,  ^nd_thus  defeat  the 
title  of  the  king  or  sovereign,  but  it  does  not^  render  the  finder 
liable  for  conversion.  His  mistake,  if  such  it  may  be  called,  like 
the  refusal  of  the  finder  to  deliver,  on  demand,  lost  property  when 
the  owner  is  unknown  to  him,  is  no  conversion ;  for  he  is  justified 
in  his  conduct  at  the  time  in  treating  it  as  treasure  trove  by  the 
presence  of  all  the  elements  which  constitute  it  such. 

The  record  shows  that  the  defendant  bought  the  property  in  at 
an  administrator's  sale,  and  entered  into  posses.sion,  and  while  thus 
in  possession  the  boys  found  the  money  in  the  manner  and  under 
the  circumstances  already  stated.  It  was  delivered  by  them  to  the 
defendant  as  their  agent  or  bailee,  for  the  purpose  of  ascertaining 
its  owner.  Neither  he  nor  they  knew  who  the  owner  was,  nor  were 
there  any  marks  on  the  money  or  otherwise  by  which  the  owner 
could  be  known.    What  was  the  defendant  to  do  ?    Here  was  money 

C.  P.  P.— .31 


482  Cases  on  Personal  Property 

evidently  deposited  for  concealment,  found  upon  his  premises,  and 
the  owner  of  it  unknown. 

Our  statute  provides  that  ' '  if  any  person  shall  find  any  money, ' ' 
etc.,  "and  if  the  owner  thereof  is  unknown,  such  person  shall  within 
five  days  after  finding  such  give  notice  thereof  in  writing  to  the 
county  clerk,  and  also  cause  a  notice  thereof  to  be  posted  in  two 
public  places,"  etc.,  and  if  the  amount  found  exceed  $15  he  "shall, 
in  addition  to  the  preceding  requirements,  within  15  days,"  etc., 
"cause  notice  thereof  to  be  published  in  a  newspaper  printed  in 
the  county,"  etc.;  "and  if  no  person  shall  appear  to  claim  the 
same,"  etc.,  "within  two  months,  he  shall  procure  the  appraisal 
thereof  by  a  justice  of  the  peace,"  etc.;  and,  further,  "if  the  owner 
of  such  lost  money,"  etc.,  "appear  within  one  year  after  notice 
given,"  etc.,  "and  make  out  his  right  thereto,  he  shall  have  restitu- 
tion," etc.;  but,  if  such  owner  shall  not  appear  within  one  year, 
then  the  finder  shall  pay  one-halt,  after  deducting  all  legal  charges, 
to  the  treasurer  of  the  county,  etc. ;  and,  in  case  of  neglect  to  ^o  so 
on  demand,  "after  the  expiration  of  the  year,"  tjie  same  may^ 
"su'ed'forby  the"county.    Code,  §§~3708-.3710. 

The  defendant,  not  knowing  to  whom  the  money  belonged,  and 
there  being  no  marks,  or  other  indicia,  by  which  the  owner  could  be 
ascertained,  treated  the  money  as  subject  to  the  provisions  of  this 
statute. 

The  language  of  the  first  section  is  that  ' '  if  any  person  shall  find 
any  money  or  goods,  and  if  the  owner  of  it  be  unknown,  such  per- 
son shall,"  etc.  This  seems  to  have  been  interpreted  to  mean  that 
when  money  or  goods  is  found,  and  the  owner  of  it  is  unknown, 
it  applies  as  well  to  money  or  goods  hidden  in  the  earth  which  had 
been  found,  and  whose  owner  was  unknown,  as  to  lost  property. 
Taking  this  section  alone,  it  might  be  argued  that  the  intent  is  to 
treat  property  hidden  and  found  as  lost  property,  where  the  owner 
is  unknown,  or  to  put  them  on  the  same  footing.  In  a  word,  that  it 
contemplates  that  he  who  "finds"  must  necessarily  have  had  no 
knowledge  of  the  existence  of  such  money  or  goods  until  found, 
and  the  owner  of  which  is  unknown;  and  that  as  to  such  person, 
whether  the  money  or  goods  be  lost  or  hidden,  it  occupies  the  same 
relation  as  to  him,  and  could  not  have  come  into  his  possession  except 
by  finding;  and  consequently  money  or  goods,  when  found,  may 
include  money  or  goods  hidden  in  the  earth  or  lost  upon  it ;  and  in 
either  case,  if  the  owner  be  unknown,  the  section  cited  is  broad 
enough  to  cover  either  case. 

In  this  view,  if  money  be  hidden  in  the  earth  for  safe-keeping, 


How  Property  Ceases  to  Exist  -483 

unless  the  owner  puts  some  marks  or  other  indicia  upon  it  by  which 
he  may  be  identified^'or  hiMe^liiown,  the  finder  would  be  juslified 
in  treatingnt  as  logt property.  But  this  construction  is  hardly 
jenable,  for,  strictly  speaking,  it  is^nIy~moiiey~or  goods  which  have 
been  lost  that  can  be  said  to  be  found:  and  the  succeeding  provi- 
sions of  the  statute  make  it  plain,  and  beyond  all  doubt,  that  the 
statute  was  only  intended  to  apply  to  lost  money  or  goods,  which, 
as  we  have  seen,  is  property  that  the  owner  has  casually  or  involun- 
tarily parted  with,  and  not  property  which  the  surroundings  evi- 
dence that  the  o\\Tner  deposited  intentionally  in  the  place  where 
found  for  safe-keeping. 

As  the  effect  of  this  statute  is  to  innovate  th^  common-law  rule  in 
destroying  the  title  of  the  owner  of  lost  property,  after  a  certain 
period,  upon  compliance  with  its  provisions,  it  certainly  ought  not, 
by  construction  or  otherwise,  to  be  extended  to  eases  which  do  not 
plainly  come  within  its  purview,  or  other  than  those  which  upon 
the  facts  are  properly  denominated  "lost  property."  Money  or' 
goods,  therefore,  when  found,  although  the  owner  is  unknown, 
which  has  been  hidden  in  the  earth  by  him  for  safe-keeping,  is  not 
property  of  which  he  has  involuntarily  parted  with  the  possession, 
or  lost  property  to  which  the  statute  applies;  and  in  such  case, 
if  the  finder  undertakes  to  treat  or  deal  with  it  as  lost  property,  his 
acts  thereby  will  not  impair  the  title  of  the  true  owTier,  or  defeat  his 
right  to  recover  it. 

But  did  the  act  of  the  defendant  in  thus  treating  the  money  con- 
stitute conversion?  It  must  be  admitted  that,  prior  to  the  dis- 
tribution of  the  money  according  to  the  statute,  all  the  acts  of  the 
defendant,  by  advertisement  and  otherwise,  were  done,  not  in  dero- 
gation of  the  rights  of  the  owner,  but  to  ascertain  who  was  such 


owner,  and,  for  the  purpose  of  satisfactory  proof,  of  delivering-kis- 
property  to  him.  As  these  means  failed  to  ascertain  to  whom  the 
money  belonged,  and  there  being  no  clue,  by  any  marks,  to  its 
ownership,  upon  the  assumption  that  the  statute  governed  in  the 
premises,  and  that  the  finders  would  be  lial)lo  to  .suit  unless  dis- 
tributed according  to  its  provisions,  the  defendant  for  them  deliv- 
ered one-half  to  the  county  and  the  other  half  to  the  finders.  In 
doing  this  he  asserted  no  ri?ht  or  title  of  himself  or  them  to  the 
money,  nor  any  as  against  the  owner  or  his  representatives,  who 
were  unknown ;  but  he  acted  in  good  faith,  upon  mistaken  assump- 
tion that  the  law  reqnirod  him,  or  those  for  whom  he  acted,  to  do 
what  was  done.  The  defendant  did  not  assume  the  right  to  dis- 
pose of  the  property,  nor  to  assert  any  dominion  over  it,  by  virtue 


484  Cases  on  Personal  Property 

of  any  claim  or  title  of  his  own  or  the  finders,  and  consequently 
there  was  no  conversion,  nor  any  prejudice  to  the  rights  of  the 
plaintiff  by  the  instruction  complained  of. 

The  judgment  must  he  affirmed.'^ 


Mislaid  Property. 
KUYKENDALL  v.  FISHER. 
61  W.  Va.  87,  56  8.  E.  48,  8  L.  R.  A.  (N.  S.)  94.    1906. 
The  facts  are  stated  in  the  opinion. 

PoFFENBARGER,  J. — A  Writ  of  error  to  the  circuit  court  of  Mineral 
county  has  brought  here  for  review  a  judgement  in  favor  of  Edward 
Kuykendall,  an  infant,  suing  by  his  next  friend,  against  Harry  C. 
Fisher,  as  administrator  of  the  estate  of  Ellen  Hughes,  deceased, 
rendered  by  that  court  on  an  appeal  from  a  judgment  of  a  justice 
of  the  peace,  in  whose  court  the  action  originated.     *     *     * 

Fisher,  as  administrator  of  Ellen  Hughes,  sold  to  one  Pierce  Hel- 
mick,  among  other  household  articles,  a  heating  stove.  Some  time 
afterwards  the  plaintiff,  Edward  Kuykendall,  a  boy  about  thirteen 
years  old,  while  playing  about  the  premises  of  Helmick,  discovered 
in  the  stove  a  small  tobacco  sack  containing  a  considerable  amount 
of  money  in  gold,  and  wrapped  in  a  cloth.  Not  knowing  its  value, 
he  gave  some  of  it  away,  and  probably  lost  a  portion  of  it.  He  gave 
to  Charles  Beemas,  another  boy,  $10,  who  handed  it  to  Mrs.  Hel- 
mick, and  to  a  boy  named  Jackson  Mayhew  $2.50,  and  on  returning 
home  his  mother  took  from  him  what  he  had  left,  amounting  to  $145. 
This  she  took  to  Fisher,  the  administrator,  and  delivered  it  to  him. 
Thereupon  Fisher  demanded  and  received  from  Mrs.  Helmick  what 
she  had  received,  and  from  the  Mayhew  boy  what  he  had  received, 
and  advertised  the  fact  of  the  loss  of  a  portion  of  the  money,  but 
was  unable  to  recover  any  more.    *     *    * 

All  the  instructions  given  by  the  court,  it  will  be  ofoserved,  are 
predicated  upon  the  hypothesis  of  the  loss  of  the  money.  It  is 
further  to  be  noticed  that  some  of  the  instructions  refused  em- 
bodied the  theory  that,  if  the  money  was  found  in  the  stove  which 
had  belonged  to  the  estate  of  Ellen  Hughes,  it  was  not  to  be  deemed 

TSee  Childs'  Personal  Property,  §331. 


How  Property  Ceases  to  Exist  485 

lost  money,  but,  on  the  contrary,  concealed  property  belonging  to 
the  estate  of  the  defendant's  decedent.  *  *  *  in  view  of  this, 
it  is  important  to  ascertain  what  the  law  deems  lost  property.  19 
Am.  &  Eng.  Enc.  Law,  2d  ed.  p.  579,  thus  defines  it,  and  inciden- 
tally states  what  is  not  such  property,  although  it  may  have  the 
semblance  of  that  character:  "Goods  are  lost,  in  the  legal  sense 
of  the  word,  only  when  the  possession  has  been  casually  and  invol- 
untarily parted  with,  as  in  the  case  of  an  article  accidentally  dropped 
by  the  owner.  If  the  owmer  of  an  article  purposely  lays  it  down, 
intending  to  take  it  up  again  immediately,  and  he  forgets  it  and 
leaves  it  where  it  is  laid  (e.  g.,  a  purse  left  on  the  counter  of  a  shop), 
or  if  he  lays  it  away  and  then  forgets  where  he  puts  it,  such  article 
is  not  lost,  but  is  merely  mislaid,  and  therefore  the  incidents  of 
lost  goods  do  not  attach."  The  law,  as  thus  stated,  indicates  that 
as  to  certain  persons  property  may  be  lost,  or  deemed  to  be  so,  but 
not  lost  as  to  the  true  o"wner  thereof.  Strangers  coming  upon  it, 
unaware  of  the  circumstances  or  the  means  by  which  it  came  to 
the  place  in  which  they  discover  it,  may,  in  the  absence  of  any 
knowledge  indicating  the  contrary,  such  as  the  place  in  which  it 
is,  presume  it  to  be  lost,  and,  as  the  decisions  will  reveal,  such  pre- 
sumption is  indulged  by  the  law.  The  finder  usually  has  the  benefit 
of  it  in  law  until  the  contrary  is  shown.  But,  though  the  owner 
does  not  appear,  and  it  is  not  known  who  he  is,  the  circumstances 
under  which  the  discovery  is  made  are  sometimes  such  as  to  make 
it  certain  that  the  property  has  not  been  lost,  but  only  mislaid,  or 
concealed  and  forgotten,  or  hidden  by  one  who  has  since  died,  where- 
fore the  place  of  concealment  cannot  be  ascertained  except  by  search. 
It  may  be  safely  predicated  of  the  decisions  that  they  hold  property, 
discovered  under  a  given  state  of  circumstances,  lost  for  some  pur- 
poses, but  not  for  others.  It  depends  upon  the  nature  of  the  action 
and  the  parties  thereto. 

What  has  been  said  indicates  that  the  place  in  which  money  or 
property,  claimed  as  lost,  was  found,  is  a  potent  factor  in  the  deter- 
mination of  the  question  w^hether  it  was  lost;  and  so  the  authorities 
expressly  hold.  This  fact  is  immaterial,  ordinarily,  as  between  the 
finder  and  all  persons  other  than  the  owner.  But,  in  determining 
whether  the  property  was  lost,  or  only  misplaced  or  concealed,  the 
important  question  in  this  case,  it  is  a  most  powerful  factor.  In 
Durfee  v.  Jones,  11  R.  I.  588,  23  Am.  Rep.  528,  money  has  been  found 
in  an  iron  safe  which  the  plaintiff  had  purchased  and  left  with  the 
defendant  for  safe-keeping,  with  permission  to  use  it.  The  defend- 
ant, a  blacksmith,  using  the  safe  under  these  circumstances  as  a 


486  Cases  on  Personal  Property 

means  of  caring  for  his  books,  found,  secreted  between  the  sheet  iron 
exterior  and  the  wooden  lining,  a  roll  of  bills  ainounting  to  $165. 
Having  informed  the  plaintiff  of  the  discovery  and  refused  to  deliver 
to  him  the  money  upon  demand,  an  action  was  brought  for  the  recov- 
ery of  it,  which  resulted  in  a  judgment  for  the  defendant.  The  court 
said  in  the  opinion :  "We  think  the  money  here,  though  designedly 
left  in  the  safe,  was  probably  not  designedly  put  in  the  crevice  or 
interspace  where  it  was  found,  but  that,  being  left  in  the  safe,  it 
probably  slipped,  or  was  accidentally  shoved,  into  the  place  where  it 
was  found,  without  the  knowledge  of  the  owner,  and  so  was  lost,  in 
the  stricter  sense  of  the  word.  The  money  was  not  simply  deposited 
and  forgotten,  but  deposited  and  lost,  by  reason  of  a  defect  or  inse- 
curity in  the  place  of  deposit. ' '  Thus  the  fact  that  it  did  not  appear 
to  have  been  deposited  in  the  place  in  which  it  was  found  was 
decisive  of  its  character  as  lost  money.  *  *  *  In  Deaderick  v. 
Oulds,  86  Tenn.  14,  6  Am.  St.  Rep.  812,  5  S.  W.  487,  the  subject 
of  controversy  was  an  unmarked  saw  log  which  had  been  carried 
by  the  high  water  in  a  river  from  the  owner's  premises  into  a 
mountain  gorge,  where  it  remained  for  over  two  years,  lodged  in 
drift  and  unreclaimed.  This  the  court  held  to  be  lost  property, 
distinguishing  the  case  from  other  Tennessee  cases  in  which  the 
property  in  controversy  had  been  held  not  to  have  been  lost.  In 
Lawrence  v.  Buck,  62  Me.  275,  a  chai^  found  in  a  river,  with  one 
end  fastened  round  a  cedar  buoy  in  a  dam,  and  partly  covered 
with  gravel  was  declared  lost  property.  In  Clark  v.  Maloney,  3 
Harr.  (Del.)  68,  logs  found  afloat  in  a  river  were  held  to  be  lost 
property.  In  Bridges  v.  Hawkesworth,  7  Eng.  L.  &  Eq.  424,  a 
parcel  containing  bank  notes,  picked  up  from  the  floor  of  a  shop, 
was  held  to  be  lost  property.  In  Ellery  v.  Cunningham,  1  Met. 
112,  bales  of  cotton  found  floating  in  a  seaport  were  held  to  be 
lost  property.  In  Mathews  v.  Harsell,  1  E.  D.  Smith,  393,  bank 
notes  found  by  a  servant  in  her  employer's  house  were  held  to  be 
lost  property  as  against  a  third  person ;  suit  having  been  brought 
against  him  for  the  same  by  the  servant  with  the  assent  of  the 
employer. 

A  few  of  the  cases  illustrating  the  other  side  of  the  proposition 
are  the  following :  In'  Lawrence  v.  State,  1  Humph.  228,  34  Am. 
Dec.  644,  it  was  held  that  a  pocketbook  which  a  person  had  laid 
upon  a  table  in  a  barber  shop,  to  remain  there  while  he  should  get 
a  bank  bill  changed,  and  which,  on  leaving  the  shop,  he  forgot  to 
take  with  him,  but  for  which  he  immediately  returned  to  the  shop, 
upon  missing  it,  was  held  not  to  be  lost  property.     It  had  been 


How  Property  Ceases  to  Exist  487 

formerly  held  in  Porter  v.  State,  Mart.  &  Y.  226,  that  lost  property 
could  not  be  the  subject  of  larceny ;  and  the  court,  in  distinguishing 
the  cases,  said:  *'"We  answer  that  the  pocketbook,  under  the  cir- 
cumstances proved,  was  not  lost,  nor  could  the  defendant  be  called 
a  finder."  In  McAvoy  v.  Medina,  11  Allen  548,  87  Am.  Dec.  733, 
a  pocketbook  picked  up  in  a  barber  shop  was  held  not  to  be  lost 
property,  so  far  as  to  enable  the  finder  to  recover  it  from  the 
barber  to  whom  he  had  delivered  it.  The  court  said:  "This  prop- 
erty was  voluntarily  placed  upon  a  table  in  the  defendant's  shop 
by  a  customer  of  his,  who  accidentally  left  the  same  there  and  has 
never  called  for  it.  The  plaintiff  also  came  there  as  a  customer, 
and  first  saw  the  same  and  took  it  up  from  the  table.  The  plaintiff 
did  not  by  this  acquire  the  right  to  take  the  property  from  the 
shop,  but  it  was  rather  the  duty  of  the  defendant  *  *  *  (owner) 
to  use  reasonable  care  for  the  safe-keeping  of  the  same  until  the 
owner  should  call  for  it."  In  Kincaid  v.  Eaton,  98  Mass.  139,  93 
Am.  Dec.  142,  an  article  accidentally  left  on  a  desk  in  a  banking 
room  was  held  not  to  be  lost,  although  it  was  advertised  as  such 
and  a  reward  promised  to  the  finder  upon  returning  it.  In  Com- 
mercial Bank  v.  Pleasants,  6  Whart.  375,  a  package  containing 
$100,000  of  bank  notes,  found  on  the  floor  of  a  fireproof  vault, 
where  the  custodian  thereof  had  dropped  it,  thinking  he  had  put 
it  in  a  box  or  compartment  in  the  vault,  w^as  held  not  to  be  lost 
property,  although  it  was  not  known  to  whom  it  belonged.  In 
Livermore  v.  White,  74  Me.  452,  43  Am.  Rep.  600,  the  facts  were 
as  follows:  The  owner  of  a  tannery,  when  removing  his  hides, 
omitted  to  take  them  all  out.  The  tannery  was  sold,  and  many 
years  after  the  plaintiff,  while  laboring  for  the  defendant  in  erect- 
ing a  factory  on  the  premises,  discovered  the  hides  so  left.  The 
court  held  that  they  were  neither  lost,  abandoned,  nor  derelict, 
nor  treasure  trove.  In  Huthmaeher  v.  Harris,  38  Pa.  491,  80  Am, 
Dec.  502,  money  and  other  valuables  secreted  by  a  decedent  in  a 
grain  drill  w^ere  held  not  to  be  lost  property.    In  Merry  v.  Green, 

7  Mee.s.  &  W.  623,  a  purse  containing  money,  found  in  a  bureau 
by  a  person  who  had  purchased  it  at  public  auction,  was  held  not 
lost  property.  Money  found  in  a  bureau  by  a  person  to  whom  it 
was  delivered  for  repairs  is  not  lost  monej'.    Cartwright  v.  Green, 

8  Ves.  Jr.  405. 

In  order  to  vest  in  a  finder  the  absolute  right  to  property,  it  must 
^jyp^f\r  thnt  ihc  nwner_has  voluntarilyarul  wholly  abandoned  it, 
intending  not  to  reclaim  it.     *     *     *     But  the  finder  of  "property^ 
not  so^abandoned  has  ordinarily  a  right  of  possession  as  against 


488  Cases  on  Personal  Property 

all  the  world  except  the  rightful  owner.  *  *  *  But  he  holds  it 
as  a  quasi  depositary  for  the  benefit  of  the  true  owner.  He  does 
not  hold  it  as  his  own  property,  although  it  may  have  been  lost 
in  the  sense  that  it  was  not  misplaced  or  put  away  for  safe-keeping. 
This  is  well  illustrated  in  the  case  of  New  York  &  H.  R.  Co.  v. 
Haws,  56  N.  Y.  175,  in  which  it  appeared  that  the  defendant  had 
found  a  sum  of  money  in  one  of  the  railway  company 's  cars,  which 
he  delivered  to  the  conductor,  to  be  restored  to  the  owner  when 
called  for.  Later  he  had  demanded  the  money  from  the  railroad 
company,  to  whose  treasurer  the  conductor  had  given  it,  and,  upon 
noncompliance  with  the  demand,  had  brought  an  action  and  recov- 
ered a  verdict.  Before  judgment,  however,  the  owner  of  the  money 
demanded  it  of  the  railroad  company,  whereupon  the  company 
brought  a  suit  in  equity,  in  which  the  claims  of  the  respective  parties 
were  brought  to  the  attention  of  the  court,  and  it  was  held  that, 
upon  the  appearance  of  the  owner  and  his  demand  for  the  money, 
all  right  of  the  finder  was  ended.  *  *  *  As  we  have  seen,  the 
owner  of  the  premises  is,  under  some  circumstances,  entitled  to  the 
custody  and  poss^ession  ofTKe  property  for  the  benefit  of  the  owner, 
as  against  the  discoverer  thereof,  while  in  others  he  is  not ;  bilt  fn 
the  former  class  it  was  determined  that  the  pr5pertyTiad  not  b^en 
lostj  but  only  forgotten  and  left  where  it  had  been  designedTy^placed. 
We  apprehend  that  in  none  of  them  was  there  an  absolute  right  of 
property  vested  in  the  finder.  Thejvesting  of  such  a  title  is  in  every 
case  dependent  upon  whether  the  property  has  been  abandoned  by 
the  true  owner.  The  finder  has  a  right  of  possession  independently 
of  that  question,  but  certainly  not  any  more  than  that,  and  pos- 
sibly a  presumptive,  contingent  right  of  property,  both  of  which 
fail  on  the  appearance  of  the  true  owner.  To  justify  the  finder  in 
appropriating  money  or  other  property  to  his  own  use,  the  cir- 
cumstances  must  be  such  as  to  afford  reasonable  ground  for  the 
Ibelief  that  it  has  been  volunta'Hly'abandoned,  and  is  therefore  lost 
pro^rty  in  the  full  legal  sense  of  iTie^efm.    *    *    *  ~ 

"Many  other'^cases,  in  dealing  with  the  question  where  other  rights 
are  involved,  treat  property  as  lost  when  it  is  apparent  that  it 
has  not  been  abandoned,  and  possession  of  it  has  been  casually, 
accidentally  lost,  as  where  money  is  found  in  a  highway  or  other 
places,  in  a  purse  with  the  name  of  the  owner  in  it,  from  which 
the  only  reasonable  inference  is  that  it  was  dropped  by  accident, 
and  not  cast  away.  Under  such  circumstances,  the  finder  is  entitled 
to  the  possession  of  it,  and  may  defend  his  possession ;  but  he  is  not 
treated  as  the  owner.    He  is  simply  a  sort  of  depositary.    *    *    * 


How  Property  Ceabes  to  Exist  489 

As  vre  have  seen,  it  has  been  held,  in  another  class  of  cases,  that 
property  found  under  certain  conditions  is  not  deemed  to  have  been 
lost,  in  the  sense  that  the  finder  is  entitled  to  its  possession  or  a 
reward  for  its  return,  although  the  owner  was  not  known  and  it 
was  apparent  that  he  did  not  know  where  the  property  was,  as 
in  the  case  of  an  article  left  on  a  desk  in  a  banking  room  and  purses 
left  in  barber  shops.  In  another  class  of  cases  it  is  held  that  prop- 
erty found  concealed  in  other  property,  such  as  bureaus,  safes,  and 
machinery,  is  not  lost  in  the  sense  of  abandoned,  unless  it  appears 
to  have  been  casually  or  accidentally  placed  there.  *  *  *  Money 
found  under  such  conditions  constitutes  what  is  known  in  law  as 
"treasure  trove."  "This  name  is  given  to  money  or  coin,  gold, 
silver  plate,  or  bullion,  which  having  been  hidden  or  concealed  in 
the  earth,  or  other  private  place,  so  long  that  its  owner  is  unknown, 
has  been  discovered  by  accident."    *     *     * 

The  principles  declared  by  these  authorities  make  it  manifest 
that  the  plaintiff,  in  asserting  his  demand  against  the  defendant, 
claiming  as  owner  of  the  money,  occupies  a  position  radically  dif- 
ferent from  that  of  a  finder  who  is  resisting  the  claim  of  some  per- 
son other  than  the  owner.  That  he  found  the  money  is  only  one 
element  in  the  case.  That  the  situation  in  which  the  money  was 
found  indicates  that  it  had  been  placed,  rather  than  lost,  there,  is 
another,  excluding,  or  at  least  tending  to  exclude,  the  idea  of  vol- 
untary abandonment  thereof,  and  so  of  absolute  property  in  the 
finder.  Whether  it  got  into  the  stove  by  accident,  and  was  tech- 
nically lost  in  a  qualified  sense,  or  was  hidden  there,  and  so  became 
technically  treasure  trove,  is,  however,  a  matter  of  no  considerable 
consequence  as  between  the  finder  and  owner.  In  either  case,  the 
finder  holds  for  the  benefit  of  the  owner,  as  we  have  seen.     *     *     * 

For  the  errors  herein  noted,  the  judgment  must  be  reversed,  the 
verdict  set  aside,  a  new  trial  allowed,  and  the  case  remanded.^ 


Treasure  Trove. 

WEEKS  V.  IIACKETT. 

104  Me.  264,  71  Atl.  858,  10  L.  R.  A.  (N.  S.)  1201.     1908. 

The  facts  arc  stated  in  the  opinion. 

Whitehouse,  J. — These  were  actions  of  trover  brought  by  each 
of  these  plaintiffs  to  recover  one  third  in  value  of  a  certain  quan- 
8  See  Childs '  Personal  Property,  §  332, 


490  Cases  on  Personal  Property 

tity  of  coins  of  the  United  States  and  of  certain  foreign  coins, 
alleged  to  have  been  found  by  each  plaintiff  jointly  with  the  other 
and  with  the  defendant,  Fessenden  E.  Hackett.  It  is  not  in  con- 
troversy that  the  coins  in  question,  of  the  aggregate  par  value  of 
$1,284.67,  were  found  contained  in  three  metallic  cans  buried  and 
concealed  in  the  soil  and  underneath  the  surface  of  land  owned  by 
one  Leonard  J.  Hackett  in  the  town  of  New  Vineyard,  and  it  appears 
in  evidence  that  after  the  coins  were  found,  and  prior  to  the  com- 
mencement of  these  actions,  the  defendant,  Fessenden  E.  Hackett, 
purchased  all  the  right,  title,  and  interest,  if  any,  which  Leonard 
J.  Hackett  had  in  and  to  these  coins  as  owner  of  the  land  where 
they  were  found.     *     *     * 

The  jury  returned  a  verdict  in  favor  of  each  plaintiff  for  the 
sum  of  $291.90,  being  one  third  of  the  aggregate  market  value  of 
the  coins.    *    *    * 

"Treasure-trove"  is  a  name  given  by  the  early  common  law  to 
any  gold  or  silver  in  coin,  plate,  or  bullion  found  concealed  in  the 
earth,  or  in  a  house  or  other  private  place,  but  not  lying  on  the 
ground ;  the  owner  of  the  discovered  treasure  being  unknown.  1  Bl. 
Com.  295 ;  19  Cyc.  Law  &  Proe.,  p.  339 ;  28  Am.  &  Eng.  Ene.  Law, 
p.  472 ;  Livermore  v.  White,  74  Me.  452,  43  Am.  Rep.  600 ;  Sovern 
V.  Yoran,  16  Or.  269,  8  Am.  St.  R^p.  293,  20  Pac.  100.  To  what 
extent  the  doctrine  of  the  English  common  law  in  regard  to  treasure- 
trove  has  been  merged,  in  this  country,  into  the  law  respecting  the 
finding  of  lost  property,  and  whether,  in  modern  commercial  life, 
the  term  "treasure-trove"  may  be  held  to  include  not  only  gold  and 
silver,  but  the  paper  representatives  of  them,  are  questions  not 
necessary  to  be  considered  here  (see  Huthmacher  v.  Harris,  38  Pa. 
499,  80  Am.  Dec.  502,  and  Danielson  v.  Roberts,  44  Or.  108,  65 
L.  R.  A.  526,  102  Am.  St.  Rep.  627,  74  Pac.  913)  ;  for  while  it  is 
not  in  controversy  that  the  coins  here  in  question  clearly  fall  within 
the  common-law  definition  of  "treasure-trove,"  the  general  rule  is 
established  by  a  substantially  uniform  line  of  decisions  in  the 
American  states,  with  respect  to  both  lost  goods,  properly  so  termed, 
and  treasure-trove,  that,  in  the  absence  of  legislation  upon  the"sub- 
.  ject,  the  title  to  such  property  belongs  to  the  finder  as  against  jll 
the  world  except  the  true  owner,  and  that,  ordinarily,  the  place 
where  it  is  found  js  immateriaL  Lawrence  v.  Buck,  62  Me.  275; 
Durfee  v.  Jones,  11  E.  I.  588,  23  Am.  Rep.  528 ;  Hamaker  v.  Blan- 
chard,  90  Pa.  377,  35  Am.  Rep.  664 ;  Bowen  v.  Sullivan,  62  Ind. 
281,  30  Am.  Rep.  172;  Danielson  v.  Roberts,  supra;  Armory  v. 
Delamirie,  1  Strange  505,  1  Smith,  Lead.  Cas.  631 ;  Bridges  v 


How  Property  CEiVSES  to  Exist  491 

HawkesTvorth,  7  Eiig.  L.  &  Eq.  424,  21  L.  J.  Q.  B.  N.  S.  75.  The. 
owner  of  the  soil  in  which  treasure^trove  is  found  acquires jiotitle^ 
thereto_bx  virtue  of  his^ownei'ship  in  jthe  land.  R.  v.  Thomas, 
THgh  &  C.  C.  C.  313;  28  Am.  &  Eng.^E^^ZLaw,  2d  ed.  p.  473. 
According  to  Bracton,  lib.  3,  chap.  3,  as  quoted  in  Viner's  Abridge- 
ment : ' '  He  to  whom  the  property  is  shall  have  treasure-trove,  and  if 
he  dies  before  it  be  found,  his  executors  shall  have  it,  for  nothing 
accrues  to  the  King  unless  when  no  one  knows  who  hid  that  treas- 
ure."  [20  Vin.  Abr.  414.]  And  according  to  Lork  Coke  (3  Inst. 
132),  the  common  law  originally  left  treasure-trove  to  the  person 
who  deposited  it,  or,  upon  his  omission  to  claim  it,  to  the  finder. 
2  Kent,  Com,  458.  The  rule  of  the  common  law  respecting  the  rights 
and  duties  of  the  finder  of  lost  money  or  goods  has  been  variously 
modified  by  the  terms  and  provisions  of  local  statutes  of  many 
states,  but  the  provisions  of  the  Maine  statutes  (Rev.  Stat.  chap. 
100,  §§  10  ef  seq.)  have  no  reference  to  the  law  of  treasure-trove. 

In  Danielson  v.  Roberts,  supra,  in  which  the  facts  were  strikingly 
analogous  to  those  at  bar,  two  boys  unearthed  on  the  defendant's 
premises  an  old  tin  can  containing  gold  coin  of  the  value  of  $7,000. 
The  circumstances  under  which  the  money  was  discovered,  the  rust- 
eaten  condition  of  the  can  in  w^hich  it  w^as  contained,  and  the  place 
of  deposit,  tended  strongly  to  show  that  it  had  been  buried  for  a 
long  time,  and  that  the  owner  was  probably  dead  or  unknown.  It 
was  held  that  the  fact  that  the  money  was  found  on  the  premises 
of  the  defendants  in  no  way  affected  the  plaintiff's  right  to  pos- 
.session  or  their  duty  in  relation  to  the  treasure,  and  that  they 
could  maintain  trover  therefor  agaiiLst  the  defendants,  to  whom 
they  had  been  induced  to  deliver  the  money.  In  a  well-reasoned 
opinion,  the  court  says : 

' '  Ever  since  the  early  ease  of  Armory  v.  Delamirie,  1  Strange  505, 
where  it  was  held  that  the  finder  of  a  jewel  might  maintain  trover 
for  the  conversion  thereof  by  a  wrongdoer,  the  right  of  the  finder  of 
lost  property  to  retain  it  against  all  persons  except  the  true  owner 
has  been  recognized.  In  that  case  a  chimney  sweeper's  boy  found  a 
jewel  and  carried  it  to  a  goldsmith  to  ascertain  what  it  was.  The 
goldsmith  refu.sed  to  return  it,  and  it  was  held  that  the  boy  might 
maintain  trover  on  the  ground  that,  by  the  finding,  he  had  acquired 
such  a  property  in  the  jewel  as  would  entitle  him  to  keep  it  against 
all  persons  but  the  rightful  owner.  This  case  has  been  uniformly 
followed  in  England  and  America,  and  the  law  upon  this  point  is 
well  settled,  Sovern  v.  Yoran,  16  Or.  260,  8  Am.  St.  Rep.  203,  20 
Pac.  100 ;  19  Am.  &  Eng,  Enc.  Law,  2d  ed,  p.  579.    But  it  is  argued 


492  Cases  on  Personal  Property 

that  property  is  lost,  in  the  legal  sense  of  that  word,  only  when  the 
possession  has  been  casually  and  involuntarily  parted  with,  and  not 
when  the  owner  purposely  and  voluntarily  places  or  deposits  it  in 
a  certain  place  for  safekeeping,  although  he  may  thereafter  forget 
it,  and  leave  it  where  deposited,  or  may  die  without  disclosing  to 
anyone  the  place  of  deposit. 

"But,  at  the  present  stage  of  the  controversy,  it  is  immaterial 
whether  the  money  discovered  by  plaintiffs  was  technically  lost 
property  or  treasure-trove ;  or,  if  treasure-trove,  whether  it  belongs 
to  the  state  or  the  finder,  or  should  be  disposed  of  as  lost  property 
if  no  owner  is  discovered.  In  either  event  the  plaintiffs  are  entitled 
to  the  possession  of  the  money  as  against  the  defendants,  unless  the 
latter  can  show  a  better  title.  The  reason  of  the  rule  giving  the 
finder  of  lost  property  the  right  to  retain  it  against  all  persons 
except  the  true  owner  applies  with  equal  force  and  reason  to  money 
found  hidden  or  secreted  in  the  earth  as  to  property  found  on  the 
surface. ' ' 

The  result,  therefore,  seems  unquestionable  that,  Jn_the  case  at 
bar,  the  coins  sued  for  Jjelonged  to  the  fiMer  or  finders  as  against 
all  the  world  except  the  true  owner  or  his  legal  representatives, 
when  discovered.    *    *    * 

*  *  *  In  reaching  the  conclusion  that  the  discovery  of  the 
three  cans  should  be  deemed  one  transaction,  and  that  the  partici- 
pation of  the  plaintiffs  in  the  discovery  of  the  coins  was  sufficient 
to  constitute  them  joint  finders  with  the  defendant,  the  jury  in  the 
cases  at  bar  appear  to  have  been  governed  by  the  same  equitable 
considerations,  and  it  is  the  opinion  of  the  court  that  the  verdicts 
were  warranted  by  the  evidence. 

Exceptions  and  motions  overruled.'^ 


Property  Hidden  in  the  Earth. 

FERGUSON  V.  RAY. 

44  Oreg.  557,  77  Pac.  600, 1  L.  R.  A.  (N.  8.)  477,  102  Am.  St.  Rep. 

648.     1904. 

The  facts  as  stated  by  the  court  are  as  follows : 

Statement  by  "Wolverton,  J. — The  plaintiff,  being  in  possession 
of  defendant's  premises  under  a  lease,  while  cutting  wood  thereon 
9  See  Childs '  Personal  Property,  §  331. 


How  Property  Ceases  to  Exist  493 

in  the  afternoon  of  November  14,  1901,  discovered  a  rich  specimen 
of  gold-bearing  quartz  lying  on  top  of  the  ground.  He  at  once 
secured  a  pick  and  shovel,  and  on  scraping  the  leaves  away  he 
found  one  or  two  other  small  pieces  * '  on  top, "  as  he  testified,  ' '  or 
almost  on  top,  of  the  ground,  sticking  through  the  ground."  On 
digging  through  the  surface  he  found  others  extending  to  the  depth 
of  10  or  12  inches,  in  all  weighing,  approximately,  171/2  pounds. 
There  were  no  indications  present  of  any  natural  ledge  or  lode  of 
gold-bearing  or  other  quartz  in  place,  or  of  any  pocket  or  placer  or 
other  natural  deposit,  the  formation  in  which  the  specimens  were 
imbedded  being  described  as  "  a  loose  surface  soil. ' '  Plaintiff  dis- 
posed of  a  part  of  the  quartz,  estimated  as  being  half  of  it  in  value, 
and  delivered  the  remainder,  8%  pounds  in  weight,  to  defendant, 
Ray.  He  now  brings  trover  for  the  quartz  thus  delivered  to  the 
defendant,  alleging  that  it  was  obtained  from  him  through  duress 
and  threats  of  arrest  and  imprisonment  and  false  and  fraudulent 
representations.  *  *  *  The  evidence  shows  that  two  trees  stand- 
ing nearest  the  place  of  discoveiy  bear  some  old  marks,  consisting 
of  one  or  more  blazes,  as  if  made  with  an  ax,  and  indentations 
having  the  appearance  of  being  struck  with  a  hammer  or  some 
blunt  instrument ;  that  another  has  been  partially  peeled,  apparently 
at  a  more  recent  date ;  that  many  trees  and  shrubs  in  the  vicinity 
contain  the  marks  of  an  ax,  and  that  many  more  have  been  cut 
away  and  made  into  wood.  *  *  *  Upon  this  condition  of  the 
record,  defendant  moved  for  a  nonsuit,  which  being  denied,  and 
judgment  having  been  rendered  adverse  to  him,  he  brings  this 
appeal. 

WOLVERTON,  J. — The  theory  upon  which  the  cause  is  sought  to 
be  maintained  is  that  the  quartz,  the  subject  of  the  dispute,  was 
either  lost  or  abandoned  property,  and  that  in  either  event  plaintiff 
is  entitled  to  its  possession  or  value  as  against  the  defendant  and  all 
others  except  the  true  owner.  As  the  property  was  found  beneath 
the  surface  of  the  earth,  not  upon  it,  the  question  has  been  presented 
whether  or  not  it  is  treasure  trove.  We  are  firmly  impressed  that 
it  cannot  be  so  considered.  Treasure  trove,  and  its  legal  status, 
according  to  Blackstone,  "is  where  any  money,  or  coin,  gold,  silver, 
plate,  or  bullion  is  found  hidden  in  the  earth,  or  other  private  place, 
the  owner  thereof  being  unknown;  in  which  case  the  treasure 
belongs  to  the  King;  but  if  he  that  hid  it  be  known,  or  afterwards 
found  out,  the  owner,  and  not  the  King,  is  entitled  to  it.  Also  if  it 
be  found  in  the  .sea,  or  upon  the  earth,  it  docs  not  belong  to  the 


494  Cases  on  Personal  Property 

King,  but  the  finder,  if  no  owner  appears.  *  *  *  Formerly  all 
treasure  trove  belonged  to  the  finder,  as  was  also  the  rule  of  the 
civil  law.  Afterwards  it  was  judged  expedient  for  the  purposes 
of  the  state,  and  particularly  for  the  coinage,  to  allow  part  of  what 
was  so  found  to  the  King;  which  part  was  assigned  to  be  all  hidden 
treasure;  such  as  is  casually  lost  and  unclaimed,  and  also  such  as 
is  designedly  abandoned,  still  remaining  the  right  of  the  fortunate 
finder."  1  Bl,  Com.  Lewis's  ed.  chap.  8,  295,  296.  Bouvier  gives 
the  same  definition,  except  that  he  adds  that  it  includes  not  only 
gold  and  silver,  but  whatever  may  constitute  riches,  as  vases,  urns, 
statues,  etc.  Bouvier,  Diet.  Mr.  Chief  Justice  Appleton  declares 
that  "nothing  is  treasure  trove  except  gold  or  silver."  Livermore 
V.  White,  74  Me.  452,  456,  45  Am.  Rep.  600.  So,  according  to  an 
article  found  in  the  Law  Times  (vol.  81,  p.  21),  the  prerogative 
of  treasure  trove  is  strictly  limited,  and  touches  only  gold  and 
silver  plate  and  bullion,  discarding  the  baser  metals ;  and  in  Elwes 
V.  Brigg  Gas  Co.,  L.  R.  33  Ch.  Div.  562,  it  is  said  that  Roman  coins, 
not  being  gold  or  silver  coins,  did  not  fall  within  the  royal  pre- 
rogative of  treasure  trove.  A  case  has  come  to  our  notice  where  it 
seems  to  have  been  conceded  that  certain  cups,  a  chalice,  pyxes, 
and  a  paten,  all  of  silver,  were  treasure  trove  (Atty.  Gen.  v.  Moore 
[1893]  1  Ch.  676),  and  another  where  solid  gold  rings  and  orna- 
ments were  so  classed  (Queen  v.  Thomas,  33  L.  J.  Mag.  Cas.  N.  S. 
22).  In  a  case  from  Pennsylvania  (Huthmacher  v.  Harris,  38  Pa. 
491,  80  Am.  Dec.  502)  the  court  says,  however,  o?  treasure  trove: 
* '  Though  commonly  defined  as  gold  or  silver  hidden  in  the  ground, 
may,  in  our  commercial  day,  be  taken  to  include  the  paper  repre- 
sentatives of  gold  and  silver, — especially  when  they  are  found 
hidden  with  both  of  these  precious  metals. ' '  This  is  manifestly  an 
enlargement  of  the  common-law  idea  of  the  term,  and  we  have  been 
unable  to  find  any  cases  that  go  beyond  it.  We  find  expressions 
by  Chancellors  Walworth  and  Kent,  however,  that  would  seem  to 
give  it  further  scope,  even  to  the  extent  of  comprising  all  chattels 
or  goods  hidden.  We  quote  from  the  former  in  McLaughlin  v. 
Waite,  5  Wend.  405,  21  Am.  Dec.  232:  "If  chattels  are  found 
secreted  in  the  earth  or  elsewhere,  the  common  law  presumes  the 
owner  placed  them  there  for  safety,  intending  to  reclaim  them. 
If  the  owner  cannot  be  found,  he  is  presumed  to  be  dead,  and  that 
the  secret  died  with  him.  In  such  cases  the  property  belongs  to  the 
sovereign  of  the  country  as  the  heir  to  him  who  was  the  owner; 
but  if  they  are  found  upon  the  surface  of  the  earth,  or  in  the  sea, 
if  no  owner  appears  to  claim  them,  it  is  presumed  they  have  been 


How  Property  Ceases  to  Exist  495 

intentionally  abandoned  by  the  former  proprietor;  and  as  such 
they  are  returned  into  the  common  mass  of  things,  as  in  a  state 
of  nature."  And  from  the  latter  in  his  Commentaries  (2  Kent, 
Com.  357)  :  *'Nor  does  this  right  of  acquisition  (by  finding) 
extend  to  goods  found  hidden  in  the  earth,  and  which  go  under 
the  denomination  of  treasure  trove.  Such  goods,  in  England, 
belonged  to  the  King."  It  is  at  once  apparent,  however,  that 
neither  of  these  distinguished  jurists  was  attempting  to  define 
treasure  trove,  but  was  distinguishing  it,  as  it  respects  the  rights 
of  the  finder,  from  goods  found  upon  the  surface  of  the  earth; 
hence  that  they  intended  no  innovation  upon  the  common-law  idea 
of  the  term.  Indeed,  Chancellor  Walworth  cites  as  his  sole  authority 
from  volumes  1  and  2  of  Blackstone's  Commentaries,  the  substance 
of  which,  as  it  relates  to  the  subject  in  hand,  we  have  quoted  above ; 
and  it  is  only  upon  the  principle  indicated  that  the  citation  sup- 
ports him  at  all.  But  without  further  reference  to  the  authorities, 
or  attempting  to  define  more  precisely  the  scope  atid  meaning  of  the 
term  ''treasure  trove,"  we  may  ver^^  safely  conclude  that,  in  view 
of  the  nature  of  theproperty  in  controversy,  it  does  not  fall  within 
the  classification.  Itis  neither  gold  nor  bullion.  It  is  simply  whaF 
may  be_eorrectly  denominated  gold-bearing  quartz.    *    *    * 

Thisbrings  us  back  to  the  real  controversy:  Was  it  lost  or 
abandoned  property,  or,  rather,  does  the  evidence  suffice  to  carry 
the  case  to  the  jury  upon  that  contention?  The  novelty  of  the 
affair  is  such  as  to  induce  hesitation,  and  to  involve  us  in  some 
doubt,  but  a  careful  survey  of  the  authorities  impresses  us  that  it 
cannot  be  characterized  as  either  lost  or  abandoned  in  the  sense 
that  the  finder  is  entitled  to  its  possession  or  ownership  as  against 
the  owner  of  the  soil.  Nor  do  we  think  that  any  reasonable  infer- 
ence that  such  is  its  nature  and  character  can  be  deduced  from  the 
evidence,  and  the  case  therefore  is  not  one  proper  for  the  jury  to 
pass  upon.  It  has  been  very  well  understood  in  this  jurisdiction 
since  the  ease  of  Sovern  v.  Yoran,  16  Or.  269,  8  Am.  St.  Rep.  293, 
20  Pac.  100,  and  the  more  recent  one  of  Danielson  v.  Roberts,  44 
Or.  108,  65  L.  R.  A.  526,  102  Am.  St.  Rep.  627,  74  Pac.  913,  what 
is  meant  by  lost  or  abandoned  property.  To  lose  is  casually  and 
involuntarily  to  part  with  the  possession,  so  that  the  mind  has  no 
impress  of,  and  can  have  no  recourse  to,  the  event;  and,  if  the 
property  is  found  on  the  surface  of  the  earth,  the  conditions  sug- 
gest that  it  has  been  intentionally  abandoned,  and  as  such  has 
returned  to  the  common  mass  of  things,  in  a  state  of  nature,  which 
belongs  to  the  first  occupant  or  finder,  the  owner  not  appearing. 


496  Cases  on  Personal  Property 

*    *    *    the  distinction  between  losing  and  abandonment  being  that 
one  is  involuntary,  while  the  other  is  by  intent  or  design.     But 
the  result,  as  it  relates  to  the  property,  is  practically  the  same,  the 
owner  not  appearing  to  lay  claim  to  it.    In  the  one  case  the  finder 
has  the  right  to  the  possession  against  all  except  the  true  owner. 
In  the  other  he  acquires  the  absolute  property  by  right  of  his  occu- 
pancy.    It  is  the  presumption  of  abandonment  that  obtains  until 
the  owner  appears  and  claims  the  property  that  gives  the  right  as 
legal  possessor  to  the  first  occupier,  the  presumption  being  disput- 
able by  the  rightful  owner.     Such  presumption  or  inference  does 
not  obtain  as  to  property  intentionally  left  or  deposited  in  a  desig- 
nated place,  and  possibly  forgotten  for  the  time  being,  as  the  loss 
depends  upon  something  more  than  knowledge  or  ignorance,  or  the 
memory,  of  the  owner  as  to  the  locality  at  any  given  moment.    "In 
such  case,"  says  Baron  Parke,  "the  taker  is  not  justified  in  con- 
cluding that  the  goods  were  lost,  because  there  is  little  doubt  he 
must  have  believed  that  the  owner  would  know  where  to  find  them 
again,  and  he  had  no  pretense  to  consider  them  abandoned  or  dere- 
lict."    *     *     *     The  circmnstances  and  conditions  of  the  place 
where  found  afforded  the  indicia  from  which  the  inference  of  a 
losing  was  deduced.    Now,  in  the  casj_ay)ar,  the  quai^tz^  was  not 
f  ound_on  the-siidace  of  the  earth.     True,  a  small  piece  or  so  was 
^ickednip  from  the  surface,  but,  if  this  were  all,  there  would  have 
been  no  controversy.    The  remainder  was  found  imbedded  in  the 
earth,  and  the  presumption  that  it  was  lost,  which  attends  property 
found  on  the  surface  of  the  earth,  is  wanting,  so  that  there  was  no 
inference  for  the  jury,  deducible  from  the  place  of  finding  and  the 
conditions  of  the  property,  that  it  was  lost  property.    Indeed,  the 
evidence,  it  would  seem,  refutes  any  such  presumption  or  inference. 
The  property  was  valuable.    It  had  certainly  at  some  time  previous 
been  detached  by  human  agency  from  a  ledge,  its  natural  place  of 
deposit;  and  the  evidence  that  it  was  once  contained  in  a  bag  of 
some  kind  of  cloth,  and  that  trees  nearest  the  place  of  finding  bore 
some  old  marks,  apparently  made  by  design  to  aid  in  locating  the 
property,  would  indicate  that  it  was  voluntarily  deposited  where 
found.    What  effect  the  elements  have  had  upon  the  conditions  and 
position  in  which  it  was  left  could  only  be  the  merest  conjecture. 
In  any  event,  there  could  be  no  inference  of  a  losing  or  abandon- 
ment_from_th^  conditions  present  at  the  finding,  and  this  is  all  the 
knowledge  we  have  respecting  the  matter ;  so  that  the  case  was  not 
suclTarwarproperto'be  left  to  the  jury  for  their  determination 
upon  the  theory  that  the  property  was  lost  or  abandoned.    The  case 


How  Property  Ce.vses  to  Exist  497 

to  our  minds,  falls  witbin  the  principle  of  a  class  of  cases  which 
we  will  now  notice,  and  which  counsel  for  defendant  rely  upon  as 
controlling.     The  one  most  nearly  illustrative  is  South  Stafford- 
shire Waterworks  v.  Sharman,  65  L.  J.  Q.  B.  (N.  S.)  460.    The  sub- 
ject of  the  controversy  there  was  two  gold  rings  found  by  a  laborer 
in  a  pool  upon  the  premises  of  his  employers.     He  was  engaged 
in  cleaning  out  the  pool,  and,  after  throwing  out  large  quantities 
of  mud,  came  across  the  rings  and  some  other  articles  of  interest. 
Lord  Russell,  in  announcing  his  opinion,  quotes  from  Pollock  and 
Wright  on  Possession  in  the  Common  Law,  pp.  40,  41,  as  follows : 
"The  possession_of  land  carries  with  it  in  general,  by  our  law,_pos- 
session  of  ever^^thing  which Js  attached  to  or  under  that  land,_and, 
7n  the  absence  of  a  better  title  elsewhere,  the  right  to_possess  it  also^_^ 
And  it  makes  no  difference  that  the  possessor  is  not  aware  of  the 
thing's  existence."     "It  is  free  to  anyone  who  requires  a  specitic" 
intention  as  part  of  de  facto  possession  to  treat  this  as  a  positive 
rule  of  law.    But  it  seems  preferable  to  say  that  the  legal  possession 
rests  on  a  real  de  facto  possession,  constituted  by  the  occupier's 
general  power  and  intent  to  exclude  unauthorized  interference." 
And  then  says:    ''It  is  upon  the  principle,  expressed  in  this  (the 
latter)  passage,  that  I  base  my  judgment,  for  it  shows  the  broad 
distinction  between  the  present  case  and  the  case  contemplated  in 
the  passage  cited  to  us  in  course  of  the  argument  from  Blackstone's 
Commentaries,  showing  that  a  jewel  cast  into  the  sea  or  on  the 
public  highway  could  not  be  said  to  be  in  the  possession  of  anyone, 
because  no  one  had  a  right  to  exclude  another  from  the  public 
place;"  and  concludes  as  follows:    "The  general  principle  is  that"^ 
where  anyone  is  in  possession  of  house  or  land  which  he  occupies,  / 
and  over  which  he  manifests  an  intention  of  exercising  a  control  I 
and  preventing  unauthorized  interference,  and  something  is  found  ^ 
in  that  house  or  on  that  land  by  a  stranger  or  a  servant,  the  pre-  \ 
sumption  is  that  the  possession  of  the  article  found  is  in  the  owner  I 
of  the  locus  in  quo."    Another  case  is  noted  in  Law  Notes  (vol.  7/ 
No.  8,  p.  160),  decided  by  Supreme  Court  Justice  Forbes,  of  New 
York;  not  so  authoritative  as  the  preceding  one,  as  it  does  not  come 
from  a  court  of  appeals,  but  the  principle  is  recognized.     Some 
ancient  dishes,  supposed  to  have  been  buried  by  Colonel  Edmeston, 
an  officer  in  the  French-Indian  war,  one  hundred  and  fifty  years 
ago,  at  a  time  when  he  was  obliged  to  flee  from  the  Indians,  were 
recently  plowed  up,  and  it  was  held  as  to  them  to  be  well  established 
that  where  a  thing  is  imbedded  in  the  soil  the  right  to  it  is  in  the 
owner  of  the  land,  unless  it  is  of  such  a  character  as  to  constitute 
C.  P.  P.— 32 


498  Cases  on  Personal  Property 

treasure  trove.  Other  cases  announcing  the  same  principle  are 
Elwes  V.  Brigg  Gas  Co.,  L.  R.  33  Ch.  Div.  562 ;  Eeg.  v.  Rowe,  Bell, 
C.  C.  93.  Now,  we  have  here  property  not  treasure  trove,  found 
imbedded  in  the  soil  under  circumstances  repelling  the  idea  that 
it  has  been  lost.  How  long  a  time  it  had  been  in  the  place  where 
found  is  conjectural,  of  course,  but  it  had  probably  been  there  many 
years, — long  enough,  at  least,  that  only  a  trace  of  the  cloth  bag 
that  once  contained  it  was  left;  and  the  ownership  of  the  land 
where  found  is  in  the  defendant.  Being  in  the  possession  of  the 
land,  and  exercising  ownership  over  it,  thus  manifesting  an  inten- 
tion to  prevent  unauthorized  interference,  we  must  conclude,  as  was 
annnounced  by  Lord  Russell  in  South  Staffordshire  AVaterworks  v. 
Sharman,  65  L.  J.  Q.  B.  (N.  S.)  460,  that  'Hhe  presumption  is  that 
the  possession^iji, the  article  foumLis  in  the  owner  of  the  locusjn 
quo." 

There  was  error,  therefore,  in  denying  the  nonsuit,  and  the  judg- 
ment appealed  from  will  be  reversed,  and  the  cause  remanded  for 
such  other  proceedings  as  may  seem  proper,  not  inconsistent  with 
this  opinion. 

Petition  for  rehearing  denied.**^ 


Abandonment. 
LOG  OWNERS'  BOOmNG  CO.  v.  HUBBELL  et  al. 
135  Mich.  65,  97  N.  W.  157,  4  L.  R.  A.  (N.  S.)  573.     1903. 
The  facts  as  stated  by  the  court  are  as  follows : 

Statement  by  Grant,  J. — This  is  an  action  of  replevin,  brought 
in  justice's  court  to  recover  a  small  amount  of  lumber  cut  from 
logs  taken  by  the  defendants  from  a  rollway  on  the  Muskegon  river ; 
plaintiff  claiming  the  right  of  possession,  but  not  ownership.  Plain- 
tiff was  organized  for  the  purpose  of  running,  driving,  booming, 
and  rafting  logs,  etc.,  on  Muskegon  lake  and  river,  and  their  tribu- 
taries. It  claimed  authority,  by  contract  from  the  log  owners  along 
this  river,  to  take  possession  of  and  run  all  the  logs  put  in  the  river, 
or  upon  the  bank  of  the  river  and  on  the  roll  ways,  and  deliver 
them  to  the  various  owners  at  their  places  of  destination.    Among 

10  See  Childs'  Personal  Property,  §  331. 


How  Property  Ceases  to  Exist  499 

such  were  the  alleged  owners  of  the  logs  in  question,  which  were 
marked  with  marks  claimed  to  be  owned  by  two  firms, — Alberts  & 
Company  and  Gow  &  Campbell.  Defendants  claimed  ownership 
by  bill  of  sale  from  one  Dickinson,  the  owner  by  purchase  of  the 
land  where  the  rollway,  known  as  the  ''Carmich^el  rollway,"  was 
situated.  Some  were  wholly  or  partly  exposed  to  view.  Others  were 
covered  with  sand  and  dirt,  and  grass  and  bushes  had  grown  over 
them.  Defendants  claim  title  by  abandonment :  their  theory  being 
that  the  original  o^vners  had  left  these  logs  in  this  rollway  so  long 
that  they  had  lost  title  by  abandonment,  and  that,  when  Dickinson 
bought  the  land,  title  to  the  logs  passed  with  it.  Plaintiff,  upon 
discovering  that  the  defendants  had  taken  the  logs,  went  to  their 
mill,  found  the  lumber  manufactured  therefrom,  and  brought  this 
action  to  recover  it.  The  issue  was  submitted  to  a  jury,  who  found 
in  favor  of  the  defendants.  Defendants  waived  the  return,  and 
asked  judgment  for  the  value. 

Grant,  J.  *  *  *  The  main  issue  was  title  by  abandonment. 
This  issue  was  left  to  the  jury,  and  we  think  correctly.  Defendants 
gave  testimony  tending  to  show  that  these  logs  had  been  in  this  roll- 
way  from  twenty  to  thirty  years,  that  they  had  become  imbedded  in 
the  sand  and  earth,  and  that  grass  and  bushes  had  grown  over  many 
of  them.  If  it  be  true  that  the  owners  had  run  other  logs  past  them 
for  many  years,  and  had  taken  no  steps  to  remove  those  imbedded 
in  the  rollway,  or  any  of  them,  it  would  not  be  an  unreasonable 
inference  to  draw  that  they  were  abandoned,  because  ordinarily 
they  would  become  decayed  and  worthless.  On  the  other  hand, 
plaintiff  insists  that  the  owners  placed  them  upon  the  rollway, 
intending  to  convey  them  to  places  of  manufacture  and  sale,  and 
that,  if  any  floated  there  and  became  imbedded  in  the  sand,  they 
were  cut  and  placed  in  the  water  with  the  same  intent;  and  that 
no  intent  to  abandon,  under  such  circumstances,  is  to  be  implied 
merely  from  lapse  of  time.  This  contention  is  sound,  and  is  sus- 
tained by  the  authorities.  The  logs  were  not  lost,  for  the  owners 
knew  that  they  had  logs  in  this  rollway  partly  buried,  and  the 
defendants  knew  it  also.  There  is  evidence  that  the  original  owners 
had  taken  logs  therefrom  from  time  to  time.  This  was  a  circum- 
stance for  the  consideration  of  the  jury  in  detennining  the  intent 
of  the  owners.  The  intention  to  abandon  is  essential  to  maintain 
defendants'  titlg.  This  may  be  inferred  from  the  conduct  of  the 
owners  and  the  situation  of  the  property.  If  these  logs  were  so 
situated  that  there  was  no  danger  of  injury  by  decay  or  otlierwise. 


500  Cases  on  Personal  Property 

and  the  owners  had  from  time  to  time  taken  logs  therefrom,  as  they 
annually  drove  the  river,  the  intent  to  abandon  could  hardly  be 
presumed  from  lapse  of  time.  If  the  parties  had  abandoned  logging 
upon  the  river,  it  is  apparent  that  the  intent  to  abandon  v^^ould  be 
more  readily  presumed  from  failure  to  remove  for  any  considerable 
length  of  time.  But  the  mere  failure  to  exercise  the  act  of  removal 
would  not  operate  as  an  abandonment,  or  proof  of  an  intention  to 
abandon.  Both  the  intention  to  abandon  and  actual  relinquishment 
must  be  shown.  1  Cyc.  Law  &  Proc.  p.  4,  and  authorities  there 
cited.     *     *     * 

Judgment  reversed,  and  new  trial  ordered. 

The  other  Justices  concurred.^^ 


Return  of  Lost  Property. 
RYAN  v.  CHOWN. 

160  Mich.  204,  125  N.  W.  46.    1910. 
Trover  for  conversion  of  turkeys. 
The  facts  are  stated  in  the  opinion. 

Brooke,  J. — The  plaintiff  in  July,  1907,  was  the  owner  of  a  hen 
turkey  and  14  young  ones.  Defendant,  who  also  owned  turkeys, 
resided  about  a  mile  and  a  half  distant  from  plaintiff's  farm.  One 
of  defendant 's  hen  turkeys  had  been  astray  for  some  weeks.  About 
the  middle  of  July,  defendant,  while  driving  along  the  highway, 
in  the  vicinity  of  plaintiff's  farm,  found  a  hen  turkey  and  chicks 
in  the  road.  She  seems  to  have  believed  that  the  mother  bird  was 
the  one  belonging  to  her  own  flock,  which  was  astray.  At  any  rate, 
she  caught  the  mother  and'  brood  of  10,  conveyed  them  to  her  home 
and  shut  them  up  that  night.  Upon  the  same  day,  she  was  advised 
by  one  Thick,  a  neighbor  of  both  plaintiff  and  defendant,  who  had 
passed  her  while  she  was  securing  the  brood,  that  he  believed  she 
had  made  a  mistake,  that  he  thought  the  turkey  she  had  taken 
belonged  to  plaintiff  and  that  her  turkey  was  on  the  corner.  Plain- 
tiff, missing  his  brood,  and  being  advised  by  Thick  of  the  fact  that 
defendant  had  taken  a  brood,  w^hich  he  (Thick)  believed  belonged 

11  See  Childs'  Personal  Property,  §  330. 


How  Property  Ceases  to  Exist  501 

to  Ryan,  drove  over  to  defendant's  farm  to  make  inquiries  about 
his  property.  There,  defendant  admitted  possession  of  the  brood, 
said  she  did  not  know  whether  it  belonged  to  Ryan  or  not,  but 
that  if  he  said  it  did,  he  might  take  it.  At  that  time,  the  brood 
was  in  a  field  of  standing  oats  and  it  could  not  be  seen  or  captured. 
The  oats  were  cut  the  following  week.  A  few  days  later,  and  after 
the  oats  were  cut,  a  note  was  written  by  plaintiff,  demanding  a 
return  of  the  property,  and  threatening  suit  if  it  was  not  returned. 
Upon  receipt  of  this  note,  defendant  claims  to  have  taken  the 
turkey  and  her  brood,  one  night  after  dark,  back  to  the  place  in  the 
highway  where  she  had  found  them,  and  there  liberated  them, 
without  notice  to  plaintiff,  and  he  has  never  regained  possession  of 
them.  Plaintiff,  knowing  nothing  of  the  return  (if  such  return 
was  made) ,  commenced  suit  in  trover  on  August  29th,  which  resulted 
in  a  judgment  in  his  favor  for  $22.  Defendant  appealed  from  said 
judgment  to  the  circuit  court,  where  it  was  reversed.  Plaintiff 
has  removed  the  case  to  this  court  for  review  on  writ  of  error. 

The  trial  court  charged  the  jury  in  part  as  follows:-  "I  charge 
you,  further,  that  in  order  for  defendant  to  avoid  the  liability  in 
an  action  for  trover  she  must  have  returned  the  turkeys  to  plain- 
tiff, before  suit,  and  the  fact  that  the  turkeys  were  in  the  neighbor- 
hood some  time  after  the  commencement  of  the  suit  would  be  no 
defense  to  this  action.  Now,  counsel  ask  me  to  say  to  you  that  if 
she  turned  the  turkeys  loose  in  the  highway,  that  would  not  be  a 
return,  but  I  decline  to  give  it  in  that  form,  and  leave  it  a  question 
for  the  jury  to  determine,  whether  leaving  the  turkeys  where  they 
were  found  in  the  highway  was  a  return  of  the  turkeys  to  the  plain- 
tiff. I  say  to  you  that  if  you  find,  considering  the  nature  of  the 
turkey  in  view  of  all  the  circumstances  of  this  case,  that  that  was 
a  proper,  fair,  and  reasonable  return  of  the  property  to  Mr.  Ryan, 
if  they  were  his  turkeys,  and  she  did  that  before  the  suit,  and  she 
is  sure  about  the  date,  then  she  would  not  be  liable,  but  if  you  find 
that  the  leaving  of  them  that  distance  from  his  house,  at  that  time 
of  day,  or  evening,  or  night  without  giving  him  any  notice  was 
not  a  fair  or  reasonable  return  of  the  property,  then  there  is  no 
question  but  that  she  was  liable,  if  the  turkeys  were  Mr.  Ryan's." 
We  think  error  is  properly  assigned  upon  this  instruction.  The 
record  shows  that  it  is  the  nature  of  turkeys  to  wander.  The 
alleged  return,  the  fact  of  which,  as  to  time,  is  not  clear  upon  the 
record,  was  not  such  a  return  as  would  relieve  defendant  from 
liability,  because  the  property  was  not  in  fact,  placed  in  plaintiff's 
possession,  nor  was  he  notified  of  defendant's  act.     As.suming  that 


502  Cases  on  Personal  Property 

defendant  did  just  what  she  claims,  her  act  indicated  rather  a  desire 
to  avoid  liability  than  a  purpose  in  good  faith  to  repossess  plaintiff 
of  his  property.     *     *     * 

The  judgment  is  reversed  and  a  new  trial  granted.^^ 


E  STRAYS. 

HAVIRD  V.  LUNG. 
19  IdaJio  790,  ns  Pac.  930.     1911. 
The  facts  are  stated  in  the  opinion. 

Mac  Lane,  District  Judge. — ThLs  is  an  action  of  claim  and  deliv- 
ery for  a  horse.  The  defendant  pleaded  the  statute  of  limitations, 
and  the  trial  court,  by  an  instruction,  withdrew  this  defense  from 
the  jury,  in  consequence  of  which  there  was  a  verdict  for  the  plain- 
tiff, and  the  defendant  has  appealed. 

The  facts  shown  by  the  record  are  that  the  plaintiff  lost  the  horse 
in  the  fall  of  1905,  and  one  C.  A.  Esgate  took  the  horse  up  as  an 
estray  while  it  was  trespassing  upon  his  land  on  the  first  of  Novem- 
ber of  that  year.  He  used  the  horse  until  February  25,  1908,  when 
he  sold  him  at  public  auction  to  Elias  Marsters,  who  used  him  on 
his  delivery  wagon  until  October,  1908,  when  he  traded  him  to  the 
defendant  in  this  action,  who  likewise  used  him  publicly  until  about 
June  23,  1909,  when  the  plaintiff  saw  the  horse  for  the  first  time 
since  1905,  demanded  possession,  and,  on  defendant's  refusal  to 
comply  with  the  demand,  commenced  this  action  on  June  25,  1909. 
( 1 )  Upon  these  facts  the  court  instructed  the  jury  that :  ' '  Where 
property  is  taken  up  as  estray,  the  law  requires  and  points  out 
the  duty  of  the  person  taking  up  such  animal  or  animals,  and, 
where  such  party  fails  to  comply  with  the  estray  law,  his  possession 
of  the  property  thus  taken  up  becomes  wrongful,  and  in  my  opinion 
he  would  not  be  permitted  to  plead  the  statute  of  limitations  in 
his  own  behalf  against  the  true  owner  of  the  property,  and  for 
that  reason  it  is  apparent  that,  while  the  property  was  held  and 
possessed  by  such  wrongful  holder,  the  statute  of  limitations  would 
not  run  and  could  not  be  invoked  in  behalf  of  a  subsequent  pur- 
chaser without  notice  by  the  person  thus  taking  up  the  estray." 

12  See  Childs'  Personal  Property,  §§333,  334. 


How  Property  Ceases  to  Exist  503 

We  think  that  this  instruction  misconceives  the  true  purpose  both 
of  the  estray  law,  and  of  the  statute  of  limitations.  By  section 
4054,  Rev.  Codes,  ' '  an  action  for  taking,  detaining,  or  injuring  any 
goods  or  chattels,  including  actions  for  the  specific  recovery  of  per- 
sonal property,"  must  be  brought  within  three  years  from  the 
accrual  of  the  cause  of  action.  By  Laws  1905,  p.  366,  §  1,  which 
was  in  force  when  Esgate  took  up  this  horse,  and  the  substance  of 
which  is  now  included  in  section  1299,  Rev.  Codes,  a  person  taking 
up  an  estray — that  is,  an  animal  running  at  large  without  sufficient 
food  or  shelter,  between  the  first  of  November  and  the  first  of  the 
following  March — is  required  to  notify  the  owner,  if  known,  or, 
if  unknown,  the  county  recorder,  whose  duty  it  is  to  search  the 
brand  record  and  to  notify  the  recorded  owner  of  the  brand,  if  the 
brand  is  recorded,  and,  if  not,  to  notify  the  constable,  who  is 
required  to  advertise  the  animal  and  sell  the  same.  The  estray 
law  has  nothing  to  do  with  the  setting  of  the  statute  of  limitations 
in  motion.  By  compliance  with  the  statute  an  absolute  title  passes 
to  the  purchaser  at  the  sale,  regardless  of  the  lapse  of  ime. 

(2)  Noncompliance  with  the  law  makes  the  possession  of  the 
taker-up  wrongful,  renders  him  liable  to  the  owner  as  for  a  con- 
version, and  leaves  him  without  protection  for  any  expenses  which 
he  may  have  incurred  in  the  care  of  the  animal  while  in  his  pos- 
session. 

(3)  So  in  this  case,  when  Esgate  took  up  the  plaintiff's  horse, 
retained  possession  of  him  without  complying  with  the  estray  law, 
and  used  the  horse  as  his  own,  he  was  guilty  of  a  conversion  of 
the  plaintiff's  property,  and  a  cause  of  action  at  once  accrued  to 
the  plaintiff  against  him.  "All  the  cases  agree  in  this,  that  a  right 
of  action  accrues  in  favor  of  the  owner  of  goods  as  soon  as  they 
are  wrongfully  taken  from  his  pos.session,  or  wrongfully  converted 
by  one  who  rightfully  came  into  possession  of  them. ' '  Harpending 
v.  Meyer,  55  Cal.  555. 

(4)  "It  is  a  general  rule  that,  where  the  possession  of  property 
is  originally  acquired  by  a  tort,  no  demand  previous  to  the  insti- 
tution of  suit  for  its  recovery  is  necessary.  It  is  only  when  the 
original  possession  is  lawful,  and  the  action  relies  upon  the  unlaw- 
ful detention,  that  a  demand  is  required."  Sargent  v.  Sturm,  23 
Cal.  359,  83  Am.  Dec.  118,  quoting  Paige  v.  O'Neal,  12  Cal.  483. 

(5)  Nor  is  the  nondiscovery  by  the  plaintiff  of  the  whereabouts 
of  the  horse  material,  as  in  an  action  of  this  kind  the  statute  runs 
from  the  time  of  the  discovery  of  the  taker,  even  though  the  thing 
taken  is  secreted  or  concealed  so  as  to  elude  discovery.     Allen  v. 


504  Cases  on  Personal  Property 

Mille,  17  Wend.  (N.  Y.)  202;  Burt  v.  Myers,  37  Hun  (N.  Y.)  277; 
Lightfoot  V.  Davis,  132  App.  Div.  452,  116  N.  Y.  Supp.  904. 

*  *  *  j^  gage  ver^^  similar  to  this  is  Carr  v.  Barnett,  21  111. 
App.  137.  There  it  appeared  that  10  years  before  suit  was  brought 
the  defendant  took  up  a  horse  as  an  estray  and  bought  it  in  at  a 
sale.  The  court  says:  "It  was  conceded  that  the  law  in  regard  to 
estrays  was  not  fully  complied  with,  and  therefore  the  title  did  not 
pass  by  the  sale,  but  it  was  insisted  that  the  statute  of  limitations 
of  five  years  was  a  perfect  defense.  The  court  held  otherwise,  and 
the  plaintiff  recovered.  If  the  defendant  unlawfully  appropriated 
the  property  to  his  own  use  under  a  claim  inconsistent  with  that  of 
the  plaintiff,  he  is  guilty  of  conversion  and  the  plaintiff  might 
have  immediately  brought  and  maintained  trover  or  replevin  with- 
out making  a  demand. ' '  Judgment  was  therefore  reversed.  Another 
similar  case  is  Leavitt  v.  Shook,  47  Or.  239,  83  Pac.  391.  There  the 
plaintiff's  horse  strayed  from  his  place  in  1893,  and  its  where- 
abouts were  unknown  to  him  until  1905,  when,  within  a  few  days 
after  its  discovery,  he  commenced  his  action.  The  defendant  claimed 
to  have  purchased  the  animal  in  good  faith  in  1903  from  a  person 
who  had  purchased  it  from  another  whom  he  believed  to  be  the 
owner,  and  both  the  defendant  and  his  predecessor  had  been  in  open 
and  notorious  possession.  The  defense  of  the  statute  of  limitations 
was  sustained.    See,  also,  Thomas  v.  Brooks,  6  Tex.  369. 

It  follows  that  the  evidence  sustained  the  defense  of  the  statute 
of  limitations,  and  the  court  erred  in  withdrawing  that  defense 
from  the  jury.  The  judgment  will  be  reversed,  with  directions  to 
enter  judgment  for  the  defendant,  unless  the  plaintiff  applies  for 
a  new  trial  within  thirty  days  from  filing  the  remittitur,  in  which 
case  a  new  trial  will  be  granted.    Costs  are  awarded  to  the  appellant. 

AiLSHiE,  P.  J.,  and  Sullivan,  J.,  concur. ^^ 

[As  to  larceny  of  estrays,  see  Crockford  v.  State  of  Nebraska,  73 
Neb.  1,  102  N.  W.  70.] 


Reward. 
WOOD  et  al.  v.  PIERSON. 

45  Midi.  313,  7  N.  W.  888.     1881. 

The  facts  are  stated  in  the  opinion. 

Graves,  J. — Pierson  sued  in  replevin  and  obtained  judgment, 
and  Wood  and  Chapman  filed  a  bill  of  exceptions  and  brought 

13  See  Childs '  Personal  Property,  §  331. 


How  Property  Ce-vses  to  Exist  505 

error.  The  subject  of  the  action  was  a  breastpin  found  by  Chapman 
and  claimed  by  Pierson.  Many  of  the  facts  are  not  disputed. 
Pierson  lost  at  Bay  City,  July  18,  1878,  a  small  diamond  pin,  which 
seems  to  have  separated  from  the  tongue  in  some  unknown  way. 
The  circumstances  of  the  loss  and  the  manner  in  which  the  body  of 
the  pin  and  tongue  became  disunited  are  left  unexplained.  The 
metallic  setting  was  a  common  pattern  and  the  gem  had  no  peculiar- 
ities to  facilitate  its  identification  by  non-experts.  Pierson  caused 
a  notice  to  be  inserted  in  the  Tribune,  a  newspaper  published  in  the 
city,  of  this  tenor ; 

"LOST." 
"$25  Reward. — Lost. — A  diamond  pin.    The  finder  will  be  paid 
the  above  reward  by  leaving  the  same  at  this  office. ' ' 

As  will  be  observed  the  advertisement  neither  gave  a  description 
of  the  pin  nor  suggested  who  offered  the  reward.  Moreover,  no 
means  of  any  kind  were  provided  for  showing  at  the  newspaper 
office  the  ownership  or  identity  of  the  pin  or  for  connecting  any 
pin  which  might  be  produced  with  the  claim  contained  in  the 
notice,  nor  was  any  money  left  with  which  to  pay  the  reward,  or 
any  provision  whatever  made  for  paying  it  there. 

Chapman  found  a  pin  which  was  subsequently  ascertained  to  be 
the  one  in  question.  His  first  impression  was,  when  he  picked  it 
up,  that  it  was  a  cheap  trinket,  but  on  second  thought  he  decided 
to  show  it  to  a  jeweler.  Dirt  was  adhering  to  it,  and  attention  was. 
at  once  drawn  to  the  fact  that,  although  the  tongue  was  wholly 
missing,  the  rivet  was  secure  and  firmly  in  its  place.  The  query 
naturally  arose  as  to  how  this  condition  of  the  pin  and  the  absence 
of  the  tongue  might  be  accounted  for.  But  in  order  to  find  out 
w'hether  it  had  any  material  value,  Chapman  took  it  immediately  to 
Wood,  the  other  defendant,  he  being  a  jeweler,  and  was  told  by 
him  that  the  stone  was  a  diamond  and  that  a  diamond  pin  had  been 
advertised  in  the  Tribune. 

On  getting  this  information,  Chapman  went  at  once  to  the  news- 
paper office  and  saw  Mr.  Shaw,  the  editor  and  manager,  who  showed 
him  the  advertisement  and  informed  him  who  the  author  was.  Mr. 
Shaw  referred  him  for  anything  further  to  Mr,  Pierson,  and  he  at 
once  carried  the  pin  to  Pierson 's  store  and  called  for  that  gentle- 
man. He  was  absent.  Chapman  was  going  from  the  city  the  next 
morning  and  he  told  a  clerk,  Mr.  Martin,  that  he  had  found  a  pin, 
and  as  he  was  going  away,  he  would  leave  it  at  Mr.  Wood's  to  be 


506  Cases  on  Personal  Property 

identified  and  returned  to  the  owner.  He  then  went  to  Wood's  and 
there  left  it  with  instructions  to  give  it  to  the  person  who  should 
identify  it  and  pay  the  reward,  and  to  no  one  else.  This  was  on 
Friday  evening,  July  26th.  The  next  morning  he  went  from  the 
city  on  business  and  only  returned  the  Monday  following  at  noon. 
During  his  absence  Pierson  called  on  AVood  and  asked  to  see  the 
pin  in  order  to  identify  it  and  "Wood  declined  and  required  him  to 
identify  it  first.  Pierson  attempted  to  do  so,  but  he  failed  to 
satisfy  Wood,  and  in  the  judgment  of  another  jeweler  to  whom  both 
referred,  and  who  also  had  the  advantage  of  inspecting  both  the 
tongue  and  body  of  the  pin  and  of  comparing  them,  the  physical 
appearances  and  indications  were  strongly  against  Pierson 's  claim. 

In  respect  to  what  was  said  at  these  interviews  there  was  want 
of  harmony  in  the  testimony.  Pierson  requested  that  another  jew- 
eler at  Bay  City  who,  he  said,  had  formerly  repaired  the  pin  and  had 
a  plaster  cast  of  the  stone  and  could  identify  it,  might  be  permitted 
to  see  it.  But  Wood  proposed  that  this  gentleman  should  call  with 
his  mould  and  he.  Wood,  could  then  see  for  himself  whether  it  fitted 
or  not.  The  gentleman  came  but  had  no  cast,  and  was  unable  to 
give  a  particular  description,  and  Wood  declined  to  show  the  pin  to 
him.  Pierson  then  proposed  that  the  pin  should  be  sent  at  his 
expense  for  the  purpose  of  identification  to  Mr.  Smith  of  Detroit 
who,  he  said,  had  mounted  it.  This  was  declined  and  Wood  sug- 
gested that  Pierson  should  write  to  Smith  for  a  description,  an 
expedient  he  observed  which  would  be  attended  with  less  risk,  but 
this  proposal  was  unacceptable  to  Pierson. 

The  testimony  disagreed  as  to  the  incidents  of  the  efi^ort  to  get 
the  question  of  identification  settled  through  Mr.  Smith,  and  in 
regard  to  what  took  place  between  Pierson  and  Chapman  after  the 
return  of  Chapman  on  the  29th.  On  Tuesday,  the  thirtieth  of  July, 
Pierson  sued  out  the  writ  of  replevin  and  went  with  the  sheriff  to 
Wood's  store  to  get  the  pin.  It  was  not  produced  and  indeed  was 
not  then  in  the  store,  although  the  fact  was  not  made  known  by 
Mr.  Wood.  It  is  unnecessary  to  recite  the  different  versions  of 
what  took  place.  On  the  next  morning,  Wednesday,  the  thirty-first, 
Mr.  Chapman  carried  the  pin  to  Detroit  and  satisfactorily  ascer- 
tained at  Mr.  Smith's  that  it  was  the  one  advertised  for  by  Mr. 
Pierson.  He  returned  on  Thursday,  and  on  Friday,  the  day  after, 
met  the  officer  and  handed  the  pin  to  him  with  the  request  to  get 
the  reward.  Pierson  refused  to  pay  it,  and  on  giving  the  usual 
replevin  bond,  received  the  pin  from  the  officer.     *     *     * 

According  to  the  common  law  the  finder  of  goods  lost  on  land 


How  Property  Ceases  to  Exist  507 

becomes  proprietor  in  case  the  true  owner  does  not  appear.  And 
meanwhile  his  right  as  finder  is  a  perfect  right  against  all  others. 
But  if  the  true  owner  does  appear,  whatever  right  the  finder  may 
have  against  him  for  recompense  for  the  care  and  expense  in  the 
keeping  and  preservation  of  the  property,  his  status  as  finder  only 
does  not  give  him  any  lien  on  the  property.  Yet  if  such  owner 
offer  a  reward  to  him  who  will  restore  the  property,  a  lien  thereon  is 
thereby  created  to  the  extent  of  the  reward  so  offered.  This  doc- 
trine in  favor  of  a  lien  in  such  circumstances  is  so  laid  down  in 
Prescott  V.  Neale,  12  Gray  222,  and  authorities  are  cited  for  it. 
Among  them  is  the  leading  case  of  Wentworth  v.  Day,  by  Chief 
Justice  Shaw,  reported  in  3  Metcalf  352,  and  which  is  approved  and 
followed  by  the  Supreme  Court  of  Pennsylvania  in  Cummings  v. 
Gann,  52  Pa.  St.  484,  and  adopted  as  correct  by  Story  in  his 
work  on  Bailments,  §§  121a  and  621a,  Parsons  has  given  it  his 
sanction  by  incorporating  it  in  the  text  of  his  work  on  Contracts, 
(volume  3,  p.  239,  6th  Ed.),  and  Edwards  presents  it  as  settled  law 
in  his  treatise  on  Bailments,  §§  20,  68  (2d  Ed.). 

Under  this  principle  the  admission  is  unavoidable  that  when 
Pierson  claimed  the  pin,  on  the  footing  of  his  notice  and  reward  of 
Chapman,  the  finder,  who  was  holding  it  for  the  actual  owner,  it  wasT" 
as  between  them,  subject  to  a  lien  in  Chapman's  favor  and  against 
TTerson  for  the  reward.  According  to  the  language  of  the  boolis 
Chapman  was  entitled  to  detain  the  article  from  Pierson  until  the 
reward  should  be  paid,  and  was  under  no  legal  obligation  to  relin- 
quish possession  to  him  or  to  give  it  to  another  or  to  allow  anything 
to  be  done  endangering  his  right  or  security.  But  there  was  a 
mutuality  of  rights.  As  claimant,  Pierson  was  entitled  to  a  reason- 
able time  and  to  fair  and  reasonable  opportunity  in  reference  to  the 
nature  of  the  chattel,  the  existing  state  of  things  bearing  on  the 
transaction  and  the  surrounding  circumstances,  and  without  impair- 
ing Chapman's  right  as  contingent  owner,  nor  his  right  of  lien,  nor 
interfering  with  his  duty  to  the  true  ownersliip  which  might  be  sub- 
sequently asserted  by  another,  to  make  such  a  showing  as  he 
could  that  the  property  was  the  same  he  had  lost  and  advertised, 
and  such  evidence  as  would  satisfy  a  fair  and  reasonable  person 
of  the  fact. 

It  was  not  for  Chapman  to  baffle  investigation  by  any  unfair 
action  or  inaction  or  give  way  to  unfounded  and  unreasonable  sus- 
picion and  then  object  that  the  evidence  of  identification  was  not 
sufficient.  Nor  was  it  for  Pierson  to  demand  anything  which  was 
not  fair  and  just  under  the  circumstances,  and  needful  for  investi- 


508  Cases  on  Personal  Property 

gation  and  consistent  with  Chapman's  rights  and  duties,  and  then 
make  its  refusal  a  pretext  for  charging  injustice  and  an  excuse  for 
making  costs.     *     *     * 

Whether  as  between  the  parties  and  in  view  of  all  the  consider- 
ations bearing  on  their  rights  and  duties  and  on  the  conveniences 
and  inconveniences  of  identification  growing  out  of  the  nature  of 
the  property,  and  bearing  on  the  chances  for  imposition,  and  on  the 
fact  of  Chapman 's  being  liable  to  account  to  whoever  should  at  last 
be  found  to  be  actual  owner,  it  was  reasonably  and  fairly  due  to 
Pierson  to  have  a  personal  inspection  to  enable  him  to  say  that  the 
pin  was  or  was  net  his  property,  and  if  he  thought  it  was,  then  to 
facilitate  his  proof  was  not  a  matter  of  law.  It  depended  on  the 
peculiarities  of  the  case,  and  was  a  question  for  the  jury  under 
instructions  conforming  to  the  principles  here  explained. 

For  the  purpose  of  judging  with  what  propriety  the  parties  acted, 
and  whether  Chapman  was  guilty  of  legal  fault,  the  transaction 
must  be  contemplated  as  it  was  on  the  thirtieth  of  July  when  the 
action  was  commenced.     *     *     * 

The  contention  touching  the  right  of  action,  in  the  absence  of  any 
tender  of  the  reward,  is  of  no  practical  importance  on  this  record. 
*  *  *  Unless  the  reward  itself  was  in  fact  waived  or  there  was 
such  behavior  on  the  part  of  Chapman  respecting  Pierson 's  recla- 
mation as  was  tantamount  to  a  denial  of  Pierson 's  right  and  a  wrong- 
ful detention,  it  is  not  perceived  that  there  was  any  ground  for 
holding  that  the  lien  was  forfeited. 

In  Isaac  v.  Clark,  2  Bulstrode  306,  Lord  Coke  states  the  law  in 
this  wise:  "When  a  man  doth  find  goods,  it  hath  been  said  and  so 
commonly  held,  that  if  he  do  dispossess  himself  of  them,  by  this  he 
shall  be  discharged ;  but  this  is  not  so,  as  appears  by  12  Edw.  IV.  13, 
for  he  which  finds  goods  is  bound  to  answer  him  for  them  who  hath 
the  property;  and  if  he  deliver  them  over  to  my  one,  unless  it  he 
imto  the  right  oivner,  he  shall  be  charged  for  them;  for  at  the  first 
it  is  in  his  election  whether  he  will  take  them  or  not  into  his  custody ; 
but  when  he  hath  them,  one  only  hath  then  right  unto  them,  and 
therefore  he  ought  to  keep  them  safely.  A  man  therefore,  which 
finds  goods,  if  he  be  wise,  will  then  search  out  the  right  oivner  of 
them,  and  so  deliver  them  unto  him.  If  the  owner  comes  unto  him 
and  demands  them,  and  he  answers  that  it  is  not  Jcnown  unto  him 
whether  lie  he  the  true  owner  of  the  goods  or  not,  and  for  this  cause 
he  refuseth  to  deliver  them,  this  refusal  is  no  conversion  if  he  do 
keep  them  for  him." 

Lord  Coke  very  clearly  enforces  the  right  and  duty  of  the  finder 


How  Property  Ceases  to  Exist  509 

to  be  certain  of  the  true  oyvnev  before  he  makes  delivery.  As  he  is 
bound  to  hold  for  the  true  owner  and  is  liable  in  case  of  misdelivery, 
the  law  makes  it  his  duty  as  well  as  his  right,  even  when  there  is 
no  reward,  to  "search  out,"  or  in  other  language,  find  the  "right 
owner,"  or  see  to  it  that  he  submits  to  no  other  than  the  "right 
OAMier."  Undoubtedly  if  Chapman's  conduct  was  such  that  a  jury 
would,  under  the  circumstances  of  the  case,  feel  satisfied  that  he 
was  actually  perverse  and  unreasonable  and  pursued  a  course  which 
was  adapted  to  baffle  fair  investigation,  instead  of  maintaining  the 
attitude  of  a  man  whose  duty  it  was,  in  the  quaint  terms  of  Lord 
Coke,  to  "search  out  the  right  owner,"  it  would  be  just  to  regard 
him  as  having  detained  the  property  unlawfully. 

The  neglect  to  tender  the  reward,  if  it  was  still  claimed,  could  not 
defeat  the  action.    Bancroft  v.  Peters,  4  Mich.  619. 

The  remedy  of  trover  was  originally  given  to  enable  the  loser  of 
goods  to  recover  of  the  finder,  and  the  principle  has  found  recogni- 
tion in  one  of  the  provisions  of  our  action  of  replevm.  Section 
6754,  Comp.  Laws. 

The  statute  expressly  refers  to  a  case  where  one  party  is  found 
to  have  a  lien  and  the  other  the  general  ownership,  and  the  court 
is  required  to  render  such  judgment  as  shall  be  just.  The  provision 
did  not  escape  the  attention  of  the  court  below.  It  was  mentioned 
in  the  charge.  The  parties  respectively  ignored  the  statute  con- 
cerning lost  property  and  planted  themselves  on  the  common  law, 
and  hence  there  seems  to  be  no  occasion  to  notice  the  former.    *    *    * 

It  is  enough  to  say  now,  that  whatever  may  have  been  intended, 
the  charge,  as  we  find  it  in  the  record,  must  have  been  received  by 
the  jury  as  instructing  them  that  the  defendants  were  hound  to 
submit  the  pin  to  the  personal  inspection  of  the  plaintiff  on  his 
request,  as  a  safe  and  proper  expedient  for  the  purpose  of  "search- 
ing out  the  right  owner,"  and  they  could  not  have  supposed  that 
it  was  submitted  to  them  to  decide  according  to  their  own  judgment 
of  the  circumstances  whether  the  defendants  ought  or  ought  not  to 
have  allowed  such  inspection.  The  riuestion  was  not  for  the  bench 
but  for  the  jury  under  suitable  instructions.     *     *     * 

The  result  reached  is  that  the  judgment  must  be  reversed,  with 
costs,  and  a  new  trial  granted.^^ 

Campbell,  J.,  and  :\Iarston,  C.  J.,  concurred. 

COOLEY,  J.,  did  not  sit  in  this  case. 

"  See  Childs '  Personal  Property,  §  335. 


510  Cases  on  Personal  Property 

Larceny  by  Finding. 
GRIGGS  V.  THE  STATE. 
58  Alabama  425,  29  Am.  Rep.  762.    1877. 

[Anderson  Griggs,  the  defendant,  was  indicted  for  stealing  a 
sack  of  coffee  from  one  Calvin  W.  Fenn.  He  was  tried,  convicted, 
and  sentenced  to  three  years'  imprisonment.  The  defendant 
appealed,  alleging  error  on  the  part  of  the  judge  in  his  charge  to 
the  jury, — the  particular  part  excepted  to  being  the  following: 
*'or  if  he  did  not  know  but  had  immediate  means  of  ascertaining 
or  finding  out  who  the  owner  was,  then  he  is  guilty  as  charged."] 

Manning,  J. — Appellant  was  indicted  for  the  larceny  of  a  sack 
of  coffee.  It  had  dropped  from  a  wagon-load  of  goods  while  being 
hauled  from  Eufaula  to  Clayton,  about  twenty  miles  distant,  along 
a  highway  in  Barbour  county,  and  not  long  afterwards,  on  the  same 
day,  found,  between  three  and  four  miles  from  Eufaula,  just  over 
a  fence  by  the  highway,  and  near  some  bushes,  about  fifty  yards 
beyond  a  gate  at  which  the  defendant's  ox-wagon  was  standing, 
and  through  which  he  had  to  pass  on  his  way  home  with  his  wagon. 
Some  circumstances  were  proved  tending  to  show  defendant  had 
put  the  sack  where  it  was  found ;  but  he  denied  that  he  had  seen 
it  or  knew  anything  about  it.  *  *  *  There  is  no  evidence  in  the 
record  that  there  was  any  mark  on  the  sack  of  coffee,  or  other 
indicium,  by  which  the  owner  could  be  kno"UTi,  or  any  other  evi- 
dence than  that  mentioned  above,  that  defendant  knew  who  the 
owner  was.    *    *    * 

There  is  no  error  in  the  charge  that  was  given  by  the  judge  to 
the  jury.  If  the  defendant  feloniously  took  and  carried  away  the 
sack  of  coffee  from  the  public  road,  and  knew  when  he  took  it 
who  the  owner  was,  or  had  immediate  means  of  ascertaining  or 
finding  out  who  the  owner  was,  then  he  was  guilty  of  larceny 
thereof.  It  seems  to  have  been  fonnerly  held  in  England,  and  is 
still  or  lately  was  held  in  one  or  two  of  the  states  of  this  Union, 
that  the  finder  of  an  inanimate  chattel  that  was  really  lost  could 
not  be  found  guilty  of  stealing  it.  "Lord  Coke  lays  down  the  law  as 
drawn  from  the  year  books  (3  Inst.  107)  to  be,  that  if  one  lose  his 
goods  and  another  find  them,  though  he  convert  them,  animo  furandi, 
to  his  own  use,  yet  it  is  no  larceny."  So,  "in  2  East's  P.  C.  663, 
it  is  expressly  stated  that  where  one  finds  a  purse  in  the  highway, 
which  he  takes  and  carries  away,  it  is  no  felony,  although  it  may 


How  Property  Ceases  to  Exist  511 

be  attended  with  all  those  circumstances  which  usually  prove  a 
felonious  intent,  such  as  denying  and  secreting  it."  In  the  People 
V.  Anderson  (14  Johns.  R.  296)  from  which  the  foregoing  extracts 
are  taken,  the  defendant  was  indicted  for  stealing  a  trunk,  which 
(it  was  believed)  had  fallen  from  a  stage-coach  on  the  highway 
and  been  found  by  him.  The  court  below  instructed  the  juiy  that 
if  he  took  the  trunk  with  intent  to  steal  it,  they  ought  to  find  him 
guilty ;  and  that  in  determining  that  question,  they  had  a  right  to 
take  into  consideration  the  prisoner's  subsequent  conduct  as  well 
as  all  the  circumstances  in  the  case.  The  Supreme  Court  of  New 
York  reversed  the  judgment,  and  said :  ' '  The  bona  fide  finder  of 
a  lost  article,  or  of  a  lost  trunk  containing  goods,  cannot  be  guilty 
of  larceny  by  any  subsequent  act  of  his  in  concealing  or  appro- 
priating to  his  own  use  the  article  or  the  contents  of  a  trunk  thus 
found. 

* '  There  can  be  no  trespass  in  taking  a  chattel  found  in  the  high- 
v;sLy,  and  the  finder  has  a  right  to  keep  the  possession  against 
everyone  but  the  true  o^\Tier.  How,  then,  can  it  be  that  a  thing 
found  bona  fide,  and  of  wdiich  the  finder  has  a  right  to  take  posses- 
sion, shall  be  deemed  to  be  taken  feloniously,  in  consequence  of  a 
subsequent  conversion,  by  denying  and  secreting  it  with  an  inten- 
tion to  appropriate  it  to  the  use  of  the  finder?"    *     *     * 

The  idea  w^as,  that  the  finder  of  an  article  lost  on  a  highway 
has  a  right  to  it  against  everybody  else  than  the  true  owner,  and 
may  take  it  and  carry  it  away.  And  if  he  subsequently  appro- 
priates it  to  his  own  use,  he  does  not  thereby  subject  himself  to 
punishment  as  a  thief,  although  he  may  know,  when  he  does  so, 
who  the  owner  is.  This  is  in  law  a  conversion  only,  very  dishonest, 
it  is  true,  but  no  larceny.  The  prevailing  doctrine,  though,  is  that 
if  he  take  it  even  from  a  highway,  animo  furandi,  wuth  intent  to 
steal  it,  and  this  intent  exists  when  he  takes  it,  he  is  in  law  guilty 
of  larceny. 

But  how  shall  a  jury  know  whether  or  not  the  intent  to  steal 
existed  at  the  time  of  the  taking?  The  law,  in  its  humanity,  re- 
quires them  to  presume  anyone  on  trial  before  them  to  be  innocent. 
The  guilt  of  the  accused  must  be  proved ;  and  it  must  be  proved 
by  evidence  showing  that  the  intent  to  steal  accompanied  the  act 
of  taking,  and  stamped  a  larcenous  character  on  his  conduct  from 
the  beginning.  •  *  *  The  law,  therefore,  requires  that  it  be 
further  shown  that  defendant,  when  he  found  the  article,  knew  who 
the  o-\\Tier  of  it  was,  or  had  then  and  there  the  means  of  knowing 
who  it  was.    Says  Mr.  Bishop  (in  the  6th  ed.  of  his  Commentaries 


512  Cases  on  Personal  Property 

on  Criminal  Law)  :  "A  man  knowing  the  owner  of  goods  cannot 
lawfully  pick  them  up  without  returning  them  to  him;  but  a  man 
not  knowing  the  owner  can.  The  doctrine,  therefore,  is,  that  if, 
when  one  takes  goods  into  his  hands  he  sees  about  them  any  marks, 
or  otherwise  learns  any  facts,  by  which  he  knows  who  the  owner  is, 
yet  with  felonious  intent  appropriates  them  to  his  own  use,  he  is 
guilty  of  larceny,  otherwise  not.  Some  of  the  cases  say  if  he  knows 
who  the  owner  is  or  has  the  means  of  ascertaining;  but  the  better 
doctrine  is,  as  before  set  dowoi,  because  every  man,  by  advertising 
and  inquiry,  can  find  the  owner,  if  he  is  to  be  found,  while  the 
guilt  of  the  defendant  must  attach  at  that  moment,  if  ever," — 2  Vol. 
E.  882.  The  doctrine  above  laid  down  is  that  of  the  case  of  Regina 
V.  Thurbourn,  1  Denn.  C.  C.  387  (2  Leading  Criminal  Cases,  18), 
in  which  Baron  Parke  delivered  a  long  and  well  considered  opin- 
ion. A  like  conclusion  was  reached  in  Tanner's  case  (14  Grattan), 
by  the  Court  of  Appeals  of  Virginia,  after  a  thorough  examination 
of  the  cases,  including  those  mentioned  in  the  elaborate  note  to  Re- 
gina V.  Preston,  2  Lead.  Crim.  Cases,  31.  "We  have  seen,"  says 
Allen,  president  of  the  court,  "from  the  authorities,  that  where 
there  are  no  indicia  by  which  the  owner  can  be  found,  the  appro- 
priation to  the  finder's  use  does  not  amount  to  larceny;  for,  as  it 
has  been  held,  the  finder  of  a  chattel  actually  lost  is  not  bound  to 
take  any  means  to  discover  the  owner.  He  must  know  him  imme- 
diately from  marks  about  the  property  or  otherwise."  And  in  a 
case  like  the  present,  it  cannot  be  held  that  he  is  bound  to  wait  by 
the  lost  goods  to  see  whether  the  owner  will  not  return  for  them. 
Peradventure,  the  person  from  whose  wagon  this  sack  of  coffee 
dropped  might  not  have  discovered  the  loss  of  it  until  his  arrival 
at  Clayton.  In  Commonwealth  v.  Titus  (16  Mass.  42),  the  Supreme 
Judicial  Court  of  Massachusetts  recognized  a  like  doctrine,  namely, 
that  it  should  be  shown  that,  when  the  article  was  found,  it  was 
taken  by  the  finder,  animo  furmidi,  and  also  that  he  then  knew 
or  had  reasonable  means  of  knowing  or  ascertaining  who  the  owner 
was.  Said  Gray,  C.  J.:  "The  instruction  given  did  not  require 
the  jury  to  be  satisfied  merely  that  the  defendant  might  have  rea- 
sonably ascertained  it,  but  that  at  the  time  of  the  original  taking 
he  either  knew  or  had  reasonable  means  of  knowing  or  ascertain- 
ing who  the  owner  was.  Such  a  finding  would  clearly  imply  that 
he  had  such  means  within  his  own  knowledge,  as  well  as  within  his 
own  possession,  or  reach,  at  that  time, 

A  distinction  is  made  by  the  courts  between  cases  in  which  an 
article  is  dropped  in  a  highway,  or  other  place  in  which  it  is  mani- 


How  Property  Ceases  to  Exist  513 

festly  lost,  and  those  in  which  it  is  intentionally  left  or  dropped 
by  the  owner  in  other  places — as  on  a  table  in  a  barber's  shop,  or 
in  a  garden  of  the  owner,  or  in  the  prisoner's  store,  or  by  a  depart- 
ing guest  at  his  hotel.  Speaking  of  such,  Parke,  Baron,  said: 
"Perhaps  these  cases  might  be  classed  amongst  those  in  which  the 
taker  is  not  justified  in  concluding  that  the  goods  were  lost,  because 
there  is  little  doubt  he  must  have  believed  that  the  owner  would 
know  where  to  find  them  again,  and  he  had  no  pretence  to  consider 
them  abandoned  or  derelict."  Regina  V.  Thurbourn,  snpi'a.  But 
where  the  goods  are  found  in  a  highway  (as  is  said  in  the  note  to 
Regina  V.  Preston,  2  Leading  Crim.  Cases,  P.  34),  "if  there  are  no 
marks  upon  the  property  or  other  indicia,  by  which  the  owner  can 
be  found,  the  appropriation  to  the  finder's  use  does  not  amount  to 
larceny,  although  he  knew  the  property  was  not  his  own."  See, 
also,  Lane  v.  The  People,  5  Gillman,  111.  305,  in  which  it  is  said : 
"These  authorities  proceed  on  the  principle  that  there  cannot  be 
a  felonious  intent  in  taking  a  chattel  from  the  highway,  which  has 
no  marks  about  it  to  designate  the  o\raer,  the  finder  in  such  case 
having  the  right  to  take  and  retain  the  possession  against  everyone 
but  the  owner."  Perhaps  it  would  be  more  correct  to  say  that, 
without  some  such  evidence  indicating  to  the  finder  at  the  time  of 
the  taking  of  the  chattel,  whose  it  was,  if  he  did  not  otherwise  know 
it,  the  law  presumes  that  he  took  it,  innocently  and  lawfully,  because 
he  might  do  so.  By  departing  from  this  rule  we  should  obliterate 
a  well  defined  boundary,  on  one  side,  of  the  crime  of  larceny. 
*     *     * 

The  charges  asked  for  defendant,  and  refused,  are  all  founded 
on  the  idea,  that  to  make  the  defendant  guilty  of  larceny,  either 
he  must  at  the  time  of  taking  the  sack  of  coffee,  have  kno\\Ti  who 
the  owner  was,  or  that  there  must  have  been  marks  upon  it  by 
which  he  could  then  be  known.  The  second  condition  is  too  nar- 
rowly expressed.  The  defendant,  according  to  the  rule  laid  down, 
may  be  found  guilty— other  things  being  sufficiently  proved— if 
he  has  the  present  means  of  knowing  who  the  owner  is,  "by  marks 
on  the  goods,  or  otherwise,"  or,  according  to  Bishop,  if,  when  he 
takes  the  goods  into  his  hands,  he  "sees  about  them  any  marks, 
or  othenvise  learns  any  facts,  by  which  he  knows  who  the  owner  is." 
It  is  thus  implied  that  such  knowledge  may  be  obtained  otherwise 
than  by  marks  only  on  the  goods.  Consequently  there  was  no  error 
in  refusing  those  charges. 

Let  the  judgment  of  the  city  court  be  affirmed.  [Judges  Brick- 
ell  and  Stoxe,  while  concurring  in  the  judgment  of  conviction, 
C.  P.  P.— 33 


514  Cases  on  Personal  Property 

dissented  from  some  of  the  principles  of  law  as  stated  by  Judge  Man- 
ning. The  substance  of  Judge  Brickell's  opinion  is  as  follows: 
Lost  property  may  be  the  subject  of  larceny.  To  establish  charge 
of  larceny,  two  things  are  necessary.  First,  felonious  intent  at  time 
of  finding.  Second,  reasonable  belief  that  owner  might  be  found 
(such  belief  may  be  result  of  previous  knowledge,  may  arise  from 
nature  of  chattel  found,  or  from  some  name  or  mark  upon  it) ,  and 
the  immediate  means  of  finding  him. 

No  other  distinction  between  lost  goods  and  those  in  any  other 
situation,  than  that,  at  time  of  finding,  intent  to  steal  must  exist, 
and  finder  must  know,  or  have  reasonable  means  of  knowing  or 
ascertaining  the  owner. 

Place  of  finding  is  material  only  in  determining  whether  goods 
are  lost  or  merely  mislaid.  If  mislaid,  the  taker  is  guilty  of  larceny 
by  appropriation  to  his  own  use,  whether  intent  to  steal  was  formed 
at  time  of  or  subsequent  to  the  taking.  Larceny  may  be  committed 
in  any  place,  public  or  private,  in  a  highway,  or  in  the  dwelling  of 
the  owner. 

Larceny  generally  includes  a  trespass ;  yet  every  trespass  is  not 
larceny.  If  possession  is  obtained  by  trespass,  it  is  not  material 
whether  the  animo  furandi  then  existed  or  was  subsequently  formed. 
In  case  of  lost  goods,  if  felonious  intent  does  not  exist  at  time  of 
finding,  no  subsequent  formation  of  that  intention  will  convert  the 
taking  into  larceny.    Intent  is  a  question  of  fact  for  the  jury.]  ^^ 


STATE  OF  IOWA  v.  HAYES. 

98  Imva  619,  67  N,  W.  673,  37  L.  B.  A.  116.     1896. 

[Defendant  was  convicted  of  larceny  of  a  sum  of  money  found  by 
him.    Appealed.] 

The  facts  are  stated  in  the  opinion. 

Deemer,  J.— The  indictment  charges  the  defendant  with  having 
stolen  a  certain  purse  or  pocketbook,  with  the  contents  thereof, 
consisting  of  $68  in  money.  The  evidence  shows  that  one  Henry  Weis 
lost  a  pocketbook  containing  some  $68  in  money,  three  receipts 
which  were  executed  in  his  name,  and  a  trunk  key,  upon  the  street 
in  front  of  a  saloon  in  the  town  of  Bellevue,  in  Jackson  county, 

IB  See  Childs '  Personal  Property,  §  337. 


How  Property  Ceases  to  Exist  515 

Iowa,  on  the  afteraoon  of  the  3d  day  of  July,  1895 ;  that  defendant 
found  the  pocketbook  soon  after  it  had  been  lost,  took  it  to  a  barn 
near  the  saloon,  and,  after  having  extracted  the  money  therefrom, 
threw  the  pocketbook  into  a  manger,  where  it  was  found  the  next 
morning.  *  *  *  The  defendant  was,  no  doubt,  convicted  under 
§  3907  of  the  Code,  which  is  as  follows:  "If  any  person  come  by 
finding  to  the  possession  of  any  personal  property  of  which  he  knows 
the  owner,  and  unlawfully  appropriate  the  same  or  any  part  thereof 
to  his  own  use,  he  is  guilty  of  larceny  and  shall  be  punished  accord- 
ingly." 

His  first  contention  on  this  appeal  is  that  the  court  erred  in 
admitting  evidence  showing  the  defendant's  possession  of  the  lost 
property,  and  his  subsequent  conversion  thereof,  for  the  reason  that 
the  corpus  delicti  was  not  shown.  As  we  understand  the  claim,  it 
is  based  upon  the  thought  that  there  was  no  evidence  showing,  or 
tending  to  show,  that  the  defendant,  at  the  time  he  found  the  prop- 
erty, knew  who  the  owner  of  it  was.  It  is  no  doubt  true  that  the 
finder  of  lost  goods,  which  have  no  marks  by  which  the  o^vner  could 
be  identified,  and  who  does  not  know  to  whom  they  belong,  is  not 
guilty  of  larceny,  even  if  he  does  not  exercise  diligence  to  dis- 
cover who  the  owner  of  the  goods  may  be.  And  it  is  likewise  true 
that  the  crime  must  consist  in  the  original  taking,  and  not  in  a  sub- 
sequent conversion.  But,  where  the  property  is  so  marked  as  to  be 
capable  of  identification,  proof  of  the  possession  and  of  the  immedi- 
ate subsequent  conversion  is  admissible,  and  such  proof  in  itself 
tends  to  establish  the  corpus  delicti.  *  *  *  The  only  distinc- 
tion made  between  theft  of  lost  goods  and  theft  of  other  property 
seems  to  be  that,  at  the  time  of  finding,  not  only  must  the  intent  to 
steal  exist,  but  the  finder  must  know,  or  have  the  reasonable  means 
of  knowing  or  ascertaining,  the  owner.     *     *     * 

The  evidence  with  reference  to  the  felonious  intent  of  the  de- 
fendant in  taking  the  property  was  ample.  On  the  question  as  to 
his  knowledge  of  the  o\\Tiership,  there  was  testimony  to  show  that 
defendant  had  seen  the  pocketbook  in  the  possession  of  Weis  just 
prior  to  the  time  it  was  lost.  And  it  further  appears  that  the 
receipts  which  were  in  the  purse  at  the  time  it  was  found  by 
defendant  clearly  and  unmistakably  identified  it  as  being  the  prop- 
erty of  Weis.  Defendant  had  "the  reasonable  means  of  knowing 
or  ascertaining,  by  these  receipts,  who  the  owner  was,"  and,  accord- 
ing to  the  instructions  of  the  court,  this  was  equivalent  to  actual 
knowledge. 

*  *  *  In  the  ninth  instruction  the  court  told  the  jury  that 
the  state  must  show,  among  other  things,  that  the  defendant,  at  the 


516  Cases  on  Personal  Property 

time  he  came  into  the  possession  of  the  pocketbook  or  purse,  and 
its  contents,  knew  that  it  belonged  to  the  said  Weis,  or,  by  an 
examination  of  the  papers  in  said  pocketbook,  might  reasonably 
have  known  that  the  said  pocketbook,  with  its  contents,  belonged  to, 
or  was  the  property  of,  the  said  Henry  Weis.  This  same  thought  is 
repeated  in  other  instructions.  It  is  insisted  that  these  instructions 
are  erroneous,  for  the  reason  that  defendant  cannot  be  convicted 
unless  it  be  shown  that  he  actually  knew  who  the  owner  of  the  prop- 
erty was  at  the  time  that  he  found  it.  That  there  are  a  few  cases 
holding  to  the  doctrine  contended  for  will  be  conceded,  but  we  think 
the  great  weight  of  authority  supports  the  instructions  given. 
*  *  *  The  thirteenth  instruction  told  the  jury  that  they  were 
to  arrive  at  the  intent  of  the  defendant  in  taking  the  property  from 
his  conduct  with  reference  thereto  at  or  closely  following,  the  tak- 
ing of  the  property,  and  concluded:  "You  are  therefore  to  say, 
from  the  acts  and  conduct  of  the  defendant  at  the  time  he  discovered 
and  took  the  money  from  the  said  pocketbook  or  purse,  whether  he 
did  so  with  the  unlawful  intent  to  convert  the  same  to  his  own 
use."  The  part  of  the  instruction  quoted  is  said  to  be  erroneous, 
because  it  is  said  the  intent  to  steal  must  exist  at  the  time  of  the 
finding,  and  not  be  formed  subsequently  to  the  taking.  "We  think 
the  instruction,  as  applied  to  the  facts  in  this  case,  ^vas  not  erro- 
neous. He  did  not  find  the  money  until  he  opened  the  purse  and 
discovered  it  therein.  As  soon  as  he  discovered  it  he  immediately 
took  it,  and  proceeded  to  convert  or  conceal  the  same.  Robinson  v. 
State,  11  Tex.  App.  403.  Moreover,  the  court  explicitly  told  the 
jury,  in  more  than  one  instruction,  that  they  must  find  that  the 
defendant,  when  he  found  the  pocketbook,  and  discovered  and  took 
from  it  the  money  therein  contained,  did  so  with  intent  to  convert 
the  same  to  his  own  use  and  deprive  the  owner  thereof.  We  see  no 
error  in  the  instructions  given. 

*  *  *  ^e  have  examined  the  whole  record,  as  is  our  duty, 
and  discovered  no  prejudicial  error. 

Affirmed.^^ 

Robinson,  J.,  and  Grainger,  J.,  dissent. 

16  See  Childs'  Personal  Property,  §  337. 

The  great  weight  of  modern  authority  seems  to  be  that  the  finder  of 
property  may  be  guilty  of  larceny;  also  that  the  finder  may  be  guilty  of 
larceny,  not  only  if  the  owner  is  known  and  the  intent  to  steal  exists 
at  the  time  of  finding,  but  also,  if,  with  such  intent,  he  appropriates  the 
goods  when  there  are  reasonable  means  of  ascertaining  the  owner,  although 
such  owner  is  not  actually  known  at  the  time  of  the  finding. 

The  finder  of  mislaid  property,  if  he  knows  it  to  be  mislaid  or  left  by 
mistake,  and  takes  it  with  intent  to  appropriate  it  to  his  own  use,  is  guilty  of 
larceny.  State  of  Connecticut  v.  Courtsol,  89  Conn.  564,  94  Atl.  973,  1916  A. 
(L.  E.  A.)  465. 


TABLE  OF  CASES 


[references  are  to  pages] 

PAGE 

Aldine  Manufacturing  Co.  v.  Phillips 338 

Ansonia  Brass  &  Copper  Co.  v.  Electrical  Supply  Co 163 

Ayre  v.  Hixson 289 

Bagley  v.  Columbus  Southern  Ry.  Co 72 

Basket  v.  Hassell 372 

Bigelow  V.  Shaw HI 

Blaelnvood  Tire  &  Vulcanizing  Co.  v.  Auto  Storage  Co 399 

Bolles  Wooden  Ware  Co.  v.  United  States 425 

Boyd  V.  City  of  Selma 12 

Boydson  v,  Goodrich 324 

Brigham  v.  Overstreet 36 

Brown  v.  Brabb ^^9 

Bryant  v.  Ware 431 

Buhl  V.  Kenyon 19 

Butchers'  Benevolent  Association  v.  Slaughter-House  Co 444 

Carmen  v.  Hosier °" 

Carney  v.  Mosher. . ^^ 

Cincinnati  Northern  Traction  Co.  v.  Rosnagle 145 

City  of  Cincinnati  v.  Haf  er .  •  •  152 

City  of  St.  Louis  v.  Hill 10 

Collier  v.  Jenks H ' 

Commonwealth  v.  Kingsbury ^'^2 

Crippen  v.  Morrison ^' 

Cushing  V.  Breed '^^^ 

Demers  v.  Graham -^47 

Derringer  v.  Plate . 20.i 

Dickey  v.  Waldo 233 

Dixon  V.  People 230 

517 


518  Table  of  Cases 

[references  are  to  pages] 

PAGE 

Doran  v,  Doran 395 

Drummond  Carriage  Co.  v.  Mills 334 

Elgin  National  Watch  Co.  v.  Illinois  Watch  Case  Co 214 

Elting  V.  Palen 118 

Ephraim  v.  Kelleher 295 

Fairbank  Co.  v.  Luckel,  King  &  Cake  Soap  Co 221 

Ferguson  v.  Ray 492 

Finney  Orchestra  v.  Finney's  Famous  Orchestra 227 

Fishell  V.  Morris 331 

Foxworthy  v,  Adams 388 

Frank  v.  Harrington 101 

Free  v.  Stuart 43 

Fuller-Warren  Co.  v.  Harter 63 

Garner  v.  Wright 308 

Gates  V.  Rifle  Boom  Co 437 

Geer  v.  State  of  Connecticut 260 

Graham  v.  Smith 125 

Gray  v.  Worst 90 

Griggs  V.  State  of  Alabama. 510 

Grigsby  v.  Breckenridge 187 

Goff  V.  Kilts 132 

Gunby  v.  Ingram 143 

Hannah  &  Hogg  v.  Richter  Brewing  Co 287 

Hanover  Star  Milling  Co.  v.  Metcalf 206 

Harper  &  Bros,  v,  Kalem  Co 192 

Harvey  Coal  &  Coke  Co.  v.  Dillon 1 

Hatcher  v.  Buf ord 368 

Haugen  v.  Sundseth 196 

Havird  v.  Lung 502 

Hecht  v.  Dittman 81 

Hesseltine  v.  Stockwell 429 

Higgins  V.  Kusterer 108 

Hirth  V.  Graham ^^ 

Holmes  v.  Hurst 181 

Holt  V.  Lucas 252 

Hoyle  V.  Plattsburgh  &  Montreal  Ry.  Co 68 


Table  of  Cases  519 

[refeeences  are  to  pages] 

PAGE 

Hunt  V.  Bullock 16 

International  Tooth-Crown  Co.  v.  Gaylord 172 

Isle  Eoyale  Mining  Co,  v.  Hertin 411 

Jaeobson  v.  Commonwealth  of  Massachusetts 467 

Jenkins  v.  Steanka 433 

Johnson  v.  Grissard 303 

Jordan  v.  Board  of  Education 348 

Kelly  V.  Ohio  Oil  Co 280 

Kellogg  V.  Lovely 244 

Kerr  v.  Kingsbury 57 

Keyes  v.  Konkel 259 

Klauber  v.  Biggerstaff 135 

Knapp  V.  Jones 21 

Kuykendall  v.  Fisher .  484 

Larson  v.  Chase 255 

Lewis  V,  Jones , 113 

Log  Owners'  Booming  Co.  v.  Hubbell 498 

Love  V.  Francis 363 

Mather  v.  Chapman 282 

Menominie,  The 327 

Merchants'  Loan  &  Trust  Co.  v.  Lamson 149 

Mochon  V.  Sullivan 346 

Moore  v.  Norman 141 

Mugler  V.  State  of  Kansas 454 

National  Automatic  Device  Co.  v.  Lloyd 167 

National  Meter  Co.  v.  Neptune  Meter  Co 169 

Newsum  v.  Hoffman 321 

North  Chicago  Street  Ry.  Co.  v,  Ackley 156 

Ohio  Oil  Co.  V.  State  of  Indiana 267 

Owings  V.  Estes 60 

Page  V.  Lewis 380 

Pickering  v.  Moore 440 


520  Table  of  Cases 

[references  are  to  pages] 

PAGE 

PoUey  V.  Johnson 83 

Potts  V.  Plaisted 139 

Purner  v.  Piercy 97 

Ray  V.  Young ' 47 

Re  Chamberlain 78 

Reed  v.  Goldneck .  •  •  -128 

Robinson  v.  Elliott 290 

Rochester  Distilling  Co.  v.  Rasey 239 

Rogers  v.  Crow 39 

Ruckman  v.  Cutwater 120 

Ryan  v.  Chown 500 

Sanborn  Map  &  Publishing  Co.  v,  Dakin  Publishing  Co 190 

Shaw  V.  Webb 350 

Silsbury  v.  McCoon ■ 402 

Smalley  v.  Northwestern  Terra-Cotta  Co .  .355 

Sovern  v.  Yoran 477 

St.  Paul  Boom  Co.  v.  Kemp 435 

State  of  Iowa  v.  Hayes 514 

State  V.  Redmon 448 

State  V.  Shaw 131 

State  V.  State  Journal  Co 176 

State  Security  Bank  v.  Hoskins . 32 

Sullivan  v.  Clifton • 343 

Susenbrenner  v.  Mathews 345 

Templar  v.  Michigan  State  Board 474 

Tripp  V.  Hasceig '" 

Tyson  v.  Post ^4 

United  States  v.  Steffens 199 

Van  Brunt  v.  Wakelee 326 

Varley  v.  Sims ^91 

Wade  V.  Strachan ^1'^ 

Wait  V.  Bovee 275 

Walsh's  Appeal   ^^9 

Washington  Ice  Co.  v.  Shortall 105 


Table  of  Cases  521 

[references  are  to  pages] 

PAGE 

Watriss  v.  First  National  Bank  of  Cambridge 51 

Weeks  v.  Hackett 489 

"Wetherbee  v.  Green .• . .  414 

Whitehead  v.  Smith .277 

Willey  V.  Snyder 306 

Winchester  v.  Craig 420 

Withey  v.  Bloem 460 

Wolford  V.  Baxter . 23 

Wood  V.  Pierson 504 


P 


CASES  CITED  IN  THE  NOTES 


PAGE 

Allred  v.  Haile 355 

Apache  State  Bank  v,  Daniels. 388 

Austin  V.  State  of  Tennessee 477 

Battle  Creek  Valley  Bank  v.  First  National  Bank  of  Madison ...  303 

Bauer  Chemical  Co.  v.  O'Donnell 175 

Berger  v.  Jacobs 162 

Bevington  v.  Bevington 395 

Bonner  v.  Minnier 359 

Bronson  v.  Rhodes 143 

Bumey  v.  Children 's  Hospital 260 

Burrow  v.  Fowler 355 

Case  V.  Allen 355 

Conrad  v.  Manning 395 

Coleman  v.  Ballandi 359 

Croekford  v.  State  of  Nebraska 504 

Crouse  v.  Mitchell 20 

Darling  v.  Neumister 359 

Deeley  v.  D wight 303 

Denison  v.  Shuler 355 

De  Witt  V.  Prescott 346 

Garr  v.  Clements 355 

Gaskins  v.  Davis 424 

Gibson  v.  Gibson •  •  •  162 

Goodman  v.  Baerlocher 359 

Graf  V.  Graf 395 

Grand  Eapids  &  I.  R.  R.  Co.  v.  Cheyboygan  Circuit  Judge 162 

\ 

Hamilton  v.  Austin 104 

Hamilton-Brown  Shoe  Co.  v.  Wolf  Bros,  &  Co 220 

523 


524  Cases  Cited  in  the  Notes 

PAGE 

Hanson  Mercantile  Co.  v.  Wyman,  Partridge  &  Co 162 

Health  Dept,  of  City  of  New  York  v.  Rector 477 

Hopkins  Fine  Stock  Co.  v.  Reid 303 

Lowe  V.  Abrahamson 359 

McAlister  v.  Des  Rochers 359 

McFadden  v.  Blocker 317 

McGoon  V.  Shirk 143 

Meyers  v.  Duddenhauser 260 

Morgan  v.  Beuthein 359 

Newell  V.  Campbell  Machine  Co 358 

Olsen  V.  Smith 355 

Omaha  &  Grant  Smelting  &  Refining  Co.  v.  Tabor 428 

People  V.  Morrison 132 

People  V.  Steele   477 

People  V.  Wagner    477 

Pinney  v.  Jorgenson 143 

Reeves  &  Co.  v.  Russell 355 

Ridden  v.  Thrall 395 

Royston  v.  McCuUey 395 

Shaw  V.  Young 359 

Sligo  Furnace  Co.  v.  Hobart-Lee  Tie  Co 424 

State  of  Connecticut  v.  Courtsol 516 

Thomas  v.  Seattle  Brewing  &  Malting  Co. 327 

Waldron  v.  Murphy 143 

Williams  v.  New  Jersey  So.  Ry.  Co 71 

Wilson  V.  Donaldson 355 

Wing  V.  Milliken 424 


INDEX 


[FIGtTRES   REFER   TO   PAGES] 

ABANDONED  PROPERTY  (see  Lost  Property). 

ACCESSION 

accession  defined,  284,  399. 

change  of  identity,  403,  404,  406,  407,  409,  412,  413,  416,  419. 

damages,  measure  of,  420,  424. 

enhanced  value,  414,  415,  419,  420. 

innocent  trespasser,  411,  413,  414,  417. 

repairs,  400,  401. 

rights  of  owner,  403,  407,  416. 

rule  between  mortgagor  and  mortgagee,  400. 

rule  of  civil  law,  404,  406,  409. 

rule  of  common  law,  405,  409,  412. 

wilful  trespasser,  402,  404,  407,  408,  412,  417;  purchaser  from,  425-428. 

ACCRETION,  284. 

ANIMALS,  DOMESTIC 
bees,  131,  132,  133,  135. 
clams,  132. 

dogs,  property  in,  125-129;  larceny  of,  126;  killing  of  sheep  by,  129,  130. 
domestic,  property  in,  126,  127. 
fish,  131,  132,  263,  285. 

increase  of  animals  (see  Chattel  Mortgages). 
oysters,  132,  264. 

ANIMALS,  WILD 

power  of  state  to  control  killing  of,  265,  266. 
property  in,  260-265. 
right  to  protect,  264,  265. 
right  to  pursue,  263. 
violation  of  game  laws,  261. 

BEES  (see  Animals). 

CHATTEL  MORTGAGES  (see  also  Potential  Existence). 
chattel  mortgage  defined,  243,  247,  250,  287. 
common  law,  288,  323;   statutory,  288. 
delivery,  291,  292,  308,  309,  314. 
description,  303-307. 

525 


526  Index 

[figures  eefee  to  pages] 
CHATTEL  MORTGAGES— Continued, 
filing,  309,  311,  315,  316,  322. 
foreclosure,  326,  327. 
fraud,  301,  302. 

increase  of  animals,  mortgage  on,  245-254,  289. 
lien,  288,  289,  296. 

offispring,  ownership  in,  245,  248,  289. 
priority,  lien,  chattel  mortgage,  355. 
refiUng,  317-321. 

removal  of  chattel  to  another  state,  321-325. 
right  of  mortgagor  to  sell  in  usual  course  of  business,  290-303. 
right  to  lend  mortgaged  property  for  temporary  use,  309. 
right  to  possession,  290-293,  299,  322. 
rights  of  assignee,  311-313. 
rights  of  creditors,  293,  295,  297,  299,  311-317. 
tender  of  mortgage  debt,  327. 
title,  247,  249,  288,  289,  298. 
unrecorded  mortgage,  311-317. 

CHATTELS,  PERSONAL 
definition  of,  18,  73. 

CHATTELS,  REAL 

definition  of,  3,  4,  6,  7,  9,  19,  22,  23. 
passing  of  title,  31. 
real  estate  by  statute,  22. 

CHOSES  IN  ACTION 

assignability,  153,  155,  158;  personal  injury,  156-162. 

claims  arising  out  of  tort,  154. 

definition,  nature  of,  13,  14,  15,  136,  152-162. 

distinction  between  injury  to  persons  and  to  property,  159. 

gift  of  (see  Gifts). 

Lord  Campbell's  Act,  160. 

property  rights  in,  154. 

right  of  assignee  to  sue  in  own  name,  158. 

right  of  corporation  to  sue  for  personal  tort,  162. 

right  of  judgment  creditor,  153-155. 

right  of  married  woman  to  sue  in  own  name,  162. 

survival  of  cause  of  action,  154,  159,  160,  162. 

CKOSES  IN  POSSESSION 

definition,  nature  of,  125-151. 
see  Animals,  Bees,  Fish,  Money. 

CLAMS,  OYSTERS  (see  Animals). 

COAL,  5,  6. 

CONFUSION 

accidental,  432. 


Index  527 

[f'GUREs  refer  to  pages] 
CONFUSION— Continued. 

articles  of  different  values,  430,  436. 
by  consent,  432. 
civil  lavr  rule,  430,  433. 
common  law  rule,  430,  433. 
definition  of,  429,  432. 

intermingling,  accidental,  432;    by  consent,  432;    fraudulent,  430;    indis- 
tinguishable, 431;  innocent,  437,  439,  441;  wilful,  433-436. 
rights  of  trespasser,  432,  433,  438-440. 

COPYRIGHT 

abandonment,  179,  180,  186. 

common  law,  176,  179,  182,  183. 

court  reports,  181. 

definition  of,  176,  178-180. 

dramatizations,  193-195. 

infringement,  190-196. 

letters,  187-190. 

maps,  190,  195. 

monopoly,  183. 

motion  picture,  192. 

music,  194. 

partial  reproduction,  191. 

photographs,  177,  178. 

property  right  in,  179,  183,  184,  188,  189. 

publication,  what  constitutes,  189. 

serial  publication,  182,  185,  186. 

statute  of  Aime,  183. 

statutory,  176,  179,  184. 

time  within  which  author  must  apply  for,  186. 

writing,  meaning  of,  195. 

CHOPS  (see  also  Potential  Existence). 
crops,  growing,  73-77,  79,  80,  84,  98,  104. 
crops,  personalty,  77,  104. 
crops,  real  or  personal  property,  73,  74. 
crops,  realty,  77. 

debtor  and  creditor,  rights  in,  82-86. 
emblements,  definition,  72,  75,  76,  78,  92. 
executor  and  heir,  right  to,  78,  85. 
fructus  in,dustriales,  85,  86;   sale  of,  98-100,  104. 
fructus  naturalos,  75,  78,  93 ;  sale  of,  98. 
fruits,  97;  parol  contract  for,  97-100. 
grantor  and  grantee,  rights  of,  tenancy  certain,  88-90;  tenancy  uncertain, 

86-88. 
grass,  75,  78,  94,  99,  102,  104. 
hops,  real  or  personal  property,  94,  101-104. 
landlord  and  tenant,  rights  of,  74,  76,  86,  92. 
life  tenant,  right  to,  87,  88. 


528  Index 

[PIGUEES    RETEB   TO   PAGES] 

CROPS— Continued, 
ownership,  76. 
sale  of,  98-100,  104. 
sale  on  execution,  73,  74,  82,  84. 
severed,  81-83. 
trees,  93-96. 

undertenants,  rights  of,  90-92. 
unsevered,  75,  80,  82,  84. 
vendor  and  vendee,  76,  81,  85,  86,  98. 
who  entitled  to,  79-90. 

CUERENCY  (see  Money). 

DAMAGES,  RULE  OF  (see  Accession). 

EMBLEMENTS  (see  Crops). 

ESTRAYS  (see  Lost  Property). 

EXPERT  WITNESS 

answer  to  hypothetical  question,  231. 

physicians,  231. 

right  to  additional  compensation,  230-233. 

FENCE  RAILS  (see  Fixtures). 

FINDER  (see  Lost  Goods), 

FISH  (see  Animals). 

FIXTURES 

adaptability,  25,  39,  63,  65. 

agreement,  29,  30,  32,  34,  36. 

annexation,  25,  34,  36,  38,  42,  43,  62-65,  70. 

definition  of,  23,  24. 

fence  rails,  30,  38,  72. 

grantor  and  grantee,  38. 

improvements,  right  to,  32. 

intention,  26,  30,  32,  37,  41,  42,  63,  65. 

landlord  and  tenant,  40,  43,  45,  46-50,  54,  55,  58-62. 

machinery,  28,  29,  33,  35. 

mortgagor  and  mortgagee,  31,  35,  45,  62,  65,  66. 

new  lease,  rights  under,  54,  55,  58,  59. 

right  to  remove,  29-40,  45-51,  54-60,  65. 

rights  of  third  parties,  45,  63. 

rolling  stock,  68-71. 

tenancy  certain,  43. 

tenancy  uncertain,  47,  50. 

tests,  24,  25,  34,  41-43,  62,  63. 

trade  fixtures,  28,  45,  48-50,  53,  54. 

vendor  and  vendee,  35,  42,  60,  62. 


Index  529 

[figtjkes  refer  to  pages] 
FRUCTUS  INDUSTRIALES;  FBUCTUS  NATURALES  (see  Ceops). 

FRUITS  (see  Crops). 

GAME  (see  Animals,  Wild). 

GAS  AND  OIL 

nature  of,  9,  269,  270,  272. 

ownership,  268-271. 

property  in,  271,  281. 

right  of  surface  owner,  268,  272,  273. 

right  to  drill  for,  280,  281. 

situs,  269,  270,  281. 

GIFTS 

acceptance,  367= 

bank  book,  361,  387,  397. 

causa  mortis,  359,  368-370,  381. 

certificate  of  deposit,  360,  361,  372,  379,  393. 

check,  362,  378,  379,  388,  390,  392,  394,  395. 

chose  in  action,  376-378. 

classification,  359. 

consideration,  394,  395. 

definition  of,  359. 

delivery,  360,  366,  367,  370-379,  384-387. 

differs  from  legacy,  371,  374,  385. 

distinction  between  inter  vivos  and  causa  mortis,  359,  362,  367,  375,  377, 

385,  386. 
inter  \ivo8,  359,  360,  363,  366,  368. 
land,  parol  gift  of,  395. 
money  on  deposit,  360,  361. 
notes,  360,  363,  375-378,  395. 
revocation,  374,  375,  384,  395. 
savings  bank  book,  378,  387,  395. 
title,  when  passes,  363,  369-374. 
what  property  subject  of,  386. 
witnesses,  384. 

GOODWILL 

assignability  of,  198,  199. 
definition  of,  198. 
property  right,  198. 

GRASS  (see  Ceops). 

HEREDITAMENTS  (see  Real  Propeety). 

HOPS  (see  Crops). 
C.  P.  P.— 29 


530  Index 

[nOUKES   BEFEE   TO  PAGES] 

HUMAN  BODIES 
autopsy,  260. 

compensation  for  mental  suffering,  258. 
damages  for  mutilating,  258,  259. 
property  in,  255-259. 
replevin,  259. 
right  of  relatives,  next  of  kin,  256,  257,  260. 

ICE,  105-113. 

sale  of  personalty,  110. 

JOINT  TENANCY 

husband  and  wife,  275-277. 
joint  bank  account,  277-279. 
right  of  survivorship,  276-278. 

LAND  (see  Real  Peoperty). 

LEASEHOLD  (LEASE) 

chattel  at  common  law,  4,  7,  22. 
definition  of,  4,  5,  19,  20. 
real  estate  by  statute,  22. 
renewal  of  lease,  51. 

LEGAL-TENDER  CASES  (see  Tender). 

LIENS  (see  also  Chattel  Mortgages). 
agister  ■'s  lien,  336. 
classification  of,  327,  328. 

common  law,  328,  331,  335,  336,  339,  340,  352. 
definition  of,  329,  332,  333. 
equitable,  328,  329,  339. 
farm  laborer's  lien,  359. 
foreclosure,  340-342. 
innkeeper's  lien,  344,  354. 
lien  for  repairs,  335,  337,  344. 
livery  stable  keeper,  331,  343,  344,  353. 
log  lien,  341,  342. 
maritime,  328,  329. 
possession,  328,  333,  339,  345,  346. 
priorities,  337,  338,  343,  344,  351,  352. 
sale  under,  339,  340. 
statutory,  328,  329,  338,  341,  353. 

LIEN,  MECHANIC'S 

definition,  nature  of,  330,  346,  347. 

destruction  of  building  before  completion,  359. 

homestead,  lien  on,  359. 

priority  over  chattel  mortgage,  355. 

priority  over  claim  of  conditional  vendor,  350-354. 


Index  531 

[figures  eefeb  to  pages] 

LIEN,  MECHANIC 'S— Continued, 
public  property,  348,  349. 
repairs  on  automobiles,  350,  351. 
rule  of  construction,  355-358. 
school  house,  348,  349. 

LOST  PROPERTY 

abandonment,  487,  488,  496,  498. 

conversion  of,  483,  508,  510, 

definition,  nature  of,  477,  479,  485,  495. 

estrays,  502;  larceny  of,  504. 

finder,  rights  of,  479,  488,  491,  492,  506,  509. 

finding,  place  of,  479,  485,  496,  512,  513. 

larceny,  estrays,   504;    by  finding,   510;    of   lost   property,   510,   515;    of 

mislaid  property,  516. 
larceny,  intent,  510-516. 
lien  on,  507-509. 
mislaid  property,  479,  484,  489. 
money,  478,  481,  482,  491,  494. 
owner,  rights  of,  479,  480,  488,  491. 
ownership,  marks  to  indicate,  511-513. 
property  hidden  in  earth,  481,  482,  492,  497,  498. 
return  of,  500. 
reward,  504. 

rule  at  common  law,  480,  506.  • 

rule,  statutory,  480-483. 
treasure  trove,  481,  487,  489,  493,  494. 

MACHINERY  (see  Fixtures). 

MANURE 

made  in  usual  course  of  husbandry,  38,  113,  114,  117,  441. 
not  made  in  usual  course  of  husbandry,  117. 
real  or  personal  property,  38,  121-124,  441. 

right  to,  landlord  and  tenant,  37,  115,  116,  124,  441;  vendor  and  vendee, 
115,  118,  119,  121. 

MECHANIC'S  LIEN  (see  Liens). 

MISLAID  PROPERTY  (see  Lost  Property). 

MONEY 

currency,  136-138. 

definition  of,  136. 

mutilated  coin,   145-149. 

stolen  money,  rights  in,  136,  149,  150. 

MORTGAGES  (see  Chattel  Mortgages). 
OCCUPANCY,  263,  282,  285,  496. 


532  Index 

[figures  refer  to  pages] 
OFFSPRING  (see  Potential  Existence). 
belongs  to  owner  of  mother,  245,  248. 

OIL  (see  Gas). 

OWNERSHIP   (see  also  Accession,  Confusion,  Gifts,  Occupancy,  Poten- 
tial Existence). 
definition,  nature  of,  2,  8,  9,  230. 

PATENTS 

abandonment  of,  172. 

must  be  useful  object,  167. 

not  on  things  injurious  to  health  and  morals,  168. 

novelty,  originality,  163. 

physical  things  only,  169. 

requisites  for,  163. 

right  to  control  price,  175. 

right  to  experiment,  174,  175. 

PETROLEUM  (see  Gas  and  Oil). 

PHYSICIANS  (see  Expert  Witness). 

POLICE  POWER 

admission  to  bar,  control  of,  476. 

aliens,  regulation  of  rights  of,  475-477. 

authority  of  legislature  over,  446,  449,  451,  457. 

automobiles,  controlling  speed  of,  472. 

barbers,  licensing  of,  474. 

bread,  regulation  of  sale  of,  477. 

cigarettes,  regulation  of  sale  of,  477. 

constitutional  restrictions  on,  450,  452. 

constitutionality  of,  462,  466. 

contagious  diseases,  450. 

definition,  nature  of,  444,  446,  449,  450,  461. 

employment  of  women  and  children,  460-466. 

game,  control  of,  267. 

health  and  public  morals,  regulation  of,  446,  451-453,  457,  458,  464,  467. 

hours  of  labor,  regulation  of,  460-466. 

intoxicating  liquors,  454. 

medicine,  regulation  of  practice  of,  476. 

milk,  regulation  of  sale  of,  465. 

personal  liberty,  458,  462,  468. 

scope  of,  446,  451-453,  461. 

sleeping  car  berths,  448. 

smallpox,  467. 

source  of,  446,  449,  451,  464. 

taking  private  property  without  compensation,  459. 

tenement  houses,  477. 

theater  tickets,  brokerage  of,  477. 

vaccination,  compulsory,  467. 


Index  533 

[piquhes  refer  to  pages] 

POTENTIAL  EXISTENCE  (see  also  Chattel  Mortgages). 
animals,  increase  of,  right  to  mortgage,  245-255,  289. 
crops,  growing,  237,  240-242,  251;   unplanted,  238,  240-243. 
definition  of,  233,  236,  237. 
offspring,  follows  parent,  245,  248, 
peaches,  236 

things  not  in  existence,  right  to  mortgage,  238-243,  248-255;  right  to  sell, 
238,  239. 

PEOPEETY  (see  Peopeety,  Personal;  Property,  Eeal). 
definition  of,  1,  2,  3,  8,  9,  11,  13,  15,  16,  69,  231,  464. 
how  ceases  to  exist,  444  (see  Police  Power). 
how  comes  into  existence,  280. 

not  taken  for  public  use  without  compensation,  10,  11. 
severance,  280. 
transfer  by  act  of  parties,  287. 

PEOPEETY,  PEESONAL 

definition  of,  7,  12-17,  28,  69. 

distinction  between  real  and  personal  property,  16,  17,  74,  102. 

how  changed  to  real  property,  28,  31. 

PEOPEETY,  EEAL 

definition  of  7-9,  14-16,  19,  69,  77. 
what  included  under,  23. 

EEAL  ESTATE  (see  Eeal  Property). 

EOLLING  STOCK  (see  Fixtures). 

SAND  AND  GEAVEL,  5. 

SEA-WEED 

right  to,  283-285. 

SEVEEANCE   (see  Property). 

SLAUGHTEE-HOUSE  CASES,  444. 

TENANCY  IN  COMMON 
grain  in  elevator,  274. 
nature  of  274,  442. 
rights  of  co-tenants,  442. 

TENANCY,  JOINT  (see  Joint  Tenancy). 

TENDER 

check,  143,  144. 

contract  to  pay  in  coin,  143. 


534  Index 

[figures  eefer  to  pages] 
TENDER — Continued. 

fit  time  and  place,  143. 

legal  tender,  137,  138,  143. 

minor  coins,  147. 

money  actually  produced,  143. 

mutilated  coin,  145-149. 

proper  sum,  141. 

what  constitutes,  139,  140. 

TENEMENTS  (see  Real  Peopeett). 

TIMBER 

sale  of  standing,  75,  77,  80,  93-99,  102. 
trees,  kind  of  property,  75,  77,  97. 

TRADEMARK   (see  Tradename). 
abandonment,  212,  213. 
common  law  right,  200-205,  208,  210. 
definition,  nature  of,  199-201,  211,  218. 
distinction  between  trademark  and  invention,  201. 
geographical  name,  use  of,  214,  219,  220. 
how  long  in  force,  217. 
infringement,  202,  205,  206,  210,  219. 
no  separate  existence,  204,  211. 
priority,  211,  212. 
property  in,  200,  204,  210,  211. 
registration  of,  200,  202,  215,  217. 
right  to  monopoly,  212. 
statutory  right,  200,  201,  205,  214. 
territorial  limits,  205,  212. 
"Trademark  Cases,"  199,  216. 
unfair  competition,  210,  213,  219,  220. 
who  entitled  to,  202,  205,  206,  210,  219. 

TRADENAME  (see  Trademark). 

distinction  between  trademark  and  tradename,  221-225. 
property  in,  228. 

TRANSFER  OF  PROPERTY  BY  ACT  OF  PARTIES  (see  PrOi'ERTY). 

TREASURE  TROVE  (see  Lost  Propeety). 

TREES  (see  Timber), 

UNFAIR  COMPETITION  (see  Trademark). 

VACCINATION,  COMPULSORY  (see  Police  Power). 

WATER,  270. 


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